PER CURIAM.
The dismissal being upon the merits and not a nonsuit, a decision was essential. ( McKenna v. Meehan, 220 App. Div. 690; Civ. Prac. Act, §§ 440, 441.) The case is, therefore, remitted to the court at Special Term for the making of a decision, which may be submitted to this court as a supplement to the present record.
See Laws of 1921, chap. 372, amdg. said § 441. — [REP.
Present — Dowling, P.J., Merrell, Martin, O'Malley and Proskauer, JJ. Case remitted to the court at Special Term for a proper decision, which may be submitted to this court as a supplement to the present record.