The order was made during the course of a trial and after the plaintiff's proof was in, but the trial was never completed. It is quite apparent that the order was not made solely upon the pleadings but was based, in part at least, upon the proof. It cannot be foretold that the proof in another trial will be precisely the same, and hence we think the order went down with the mistrial and should be treated as a nullity.
Order reversed, upon the law, without costs and...
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