PER CURIAM:
The complaint was dismissed at the close of plaintiff's case for failure of proof, and, therefore, it was improper to enter a judgment dismissing the complaint upon the merits. The judgment should be modified by striking out the words "upon the merits," and as so modified affirmed, without costs.
PER CURIAM:
Judgment modified by striking out the words "upon the merits," and as so modified affirmed, without costs.