Opinion
July, 1933.
Resettled order setting aside verdict and dismissing complaint and judgment entered thereon reversed on the law and a new trial granted, costs to appellant to abide the event. The court was without authority to dismiss the complaint after motion to dismiss had been made and denied at the close of plaintiff's case and at the close of the whole case. ( Dougherty v. Salt, 227 N.Y. 200.) In any event there was ample proof to sustain the verdict. In view of this decision the appeal from the order of June 16, 1932, setting aside the verdict and granting a new trial, is dismissed. Lazansky, P.J., Young, Tompkins and Davis, JJ., concur; Scudder, J., not voting.