Judgment affirmed, without costs of this appeal to any *690party. All concur. (Appeal from a judgment o£ Erie Trial Term for defendant Malik for no cause of action, following dismissal of the complaint on the merits as to the other three defendants, dismissal as to Malik being based on the jury’s verdict, in an action to recover damages for the death of plaintiff’s intestate by drowning in an accumulation of surface water in an unguarded excavation.) Present■ — McCurn, P. J., Williams, Bastow, Goldman and Halpern, JJ.