According to his testimony, the plaintiff’s driver when west of Fifty-Seventh street, and driving easterly, saw the car of the defendant one-half a block away, approaching rapidly, and, so driving on his way, the wagon was struck in the middle, to its great injury and the shivering of its load of plate glass. Another witness testified, with some adjustments and readjustments, to the positions and movements of the respective vehicles. Then the plaintiff rested, and the learned justice, with whom rested the credibility of their testimony, either disbelieving one or both of the witnesses, who were not at agreement, or believing that they had testified to too much, found for the defendant upon the merits; whereupon judgment, with costs, was rendered for the defendant. The finding was justifiable. The judgment would better be modified so as to run, “Judgment that the action be dismissed upon the merits, with costs.” Municipal Court Act, § 249, Eaws 1902, p. 1561, c. 580.
Judgment modified so as to read: Judgment that the action be dismissed upon the merits, with costs, and, as modified, affirmed, with costs on this appeal to the respondent. -All concur.