Per Curiam. There is some indication that the trial court had not intended the dismissal, upon plaintiff’s attorney’s failure to appear at the time fixed for trial, to be upon the merits; at the most, the trial court, when asked, failed to make clear whether or not that was its intent.
In any event, and under all the circumstances, we conclude that proper exercise of the trial court’s discretion required dismissal on terms (CPLR 3216) and that the orders and judgment appealed from should be modified, on the law and the facts and in the exercise of discretion, by deleting therefrom the provisions for dismissal upon the merits and so as to provide that such dismissal be without prejudice to the commencement of a new action for the same cause upon payment of defendants’ costs and disbursements in the prior action, including costs upon this appeal; and, as so modified, affirmed.
The circumstances were somewhat unusual and our conclusion does not by any means suggest a policy that dismissals should not be upon the merits in cases more aggravated than this. Gibson, P. J., Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.