(concurring in result only). I do not agree that the judgment against Orel in the action tried in Sullivan County is binding on the plaintiffs in this action. ,
However, from the record which the plaintiffs have incorporated in their reply, it does not appear whether the dismissal of their complaint occurred at the opening of the trial on account of the failure of the plaintiffs to appear or whether it occurred at the conclusion of the trial after the defendants had offered evidence. Accordingly, it is impossible to determine from the allegations of the reply whether the action in Sullivan County resulted in a nonsuit of the plaintiffs, in which event the judgment would not be upon the merits, or a judgment on the merits after the defendants had offered proof in denial of the allegations of the complaint. Under these circumstances, the recital in the judgment that the complaint was dismissed upon the merits must be presumed to be correct.
For that reason the reply is insufficient and the order should, accordingly, be reversed and the complaint dismissed.
Townley, Dobe and Cohn, JJ., concur with Martin, P. J.; Untermyer, J., concurs in result, with opinion.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion granted.