In an action to set aside a deed to real property and for related relief, plaintiff appeals from (1) an order of the Supreme Court, Queens County, dated August 17, 1971, which granted defendants’ motion to dismiss the complaint, and (2) a judgment of said court dated August 30, 1971 and made upon said order. Order and judgment reversed, with $10 costs and disbursements, and motion denied. In our opinion, the dismissal of the complaint in the prior action was not on the merits and was not res judicata on this motion (Searles v. Main Tavern, 28 A D 2d 1136; cf. CPLR 5013). The present complaint states a cause of action. Rabin, P. J., Hopkins, Christ, Brennan and Benjamin, JJ., concur.