Judgment modified by providing therein that it is without prejudice, and as so modified unanimously affirmed, with costs. Assuming, without deciding, that plaintiff was entitled to recover nominal damages in any event, the rule is settled that appellate courts do not reverse judgments to enable the recovery of merely nominal damages. ( Shapiro v. Benenson, 181 App. Div. 19, 27; National Cash Register Co. v. Schmidt, 48 id. 472, 474; Mosler Safe Co. v. Brenner, 100 Misc. 107; McConihe v. New York Erie R.R. Co., 20 N.Y. 495, 498.)