Opinion
May, 1910.
Mortimer W. Solomon, for appellant.
Leon S. Kaiser, for respondent.
Defendant moved at the opening of the trial to dismiss the complaint, upon the ground that it failed to state facts sufficient to constitute a cause of action. The court thereupon suspended the trial and stated that, in the event of a denial of the motion, he would set the cause down for a future day for trial. Subsequently he granted the motion and dismissed the complaint, with costs. This was error. The motion should have been treated as a demurrer and leave given to the plaintiff to amend his complaint. Rogers v. Fine, 49 Misc. 633; Carpenter v. Pirner, 52 id. 485.
The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
Present: SEABURY, GUY and BIJUR, JJ.
Judgment reversed and new trial ordered.