Opinion
June 3, 1974
In an action for separation, the plaintiff husband appeals from a judgment of the Supreme Court, Queens County, dated May 29, 1973, which dismissed the complaint upon the trial court's oral decision rendered at the close of the testimoney of plaintiff, the first witness. Judgment reversed, on the law, without costs, complaint reinstated and case remanded for a new trial before a Justice other than the one who tried this case. The only testimony adduced being to the effect that for a period of more than two years plaintiff was denied his right of consortium, a prima facie case of abandonment was shown ( Hessen v. Hessen, 33 N.Y.2d 406). The granting of a motion to dismiss for failure to establish a prima facie case was premature at this juncture, for plaintiff was then entitled to the advantage of every inference that could properly be drawn from the facts adduced. Hopkins, Acting P.J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.