Opinion
April 5, 1929.
Appeal from the Municipal Court, Borough of Manhattan, Fifth District.
Louis F. Perl, for the appellant.
Sternberg Rosen [ Sidney Wedeen of counsel], for the respondent.
In the condition of the proofs when plaintiff rested, defendant also resting on the statement of the trial judge that he gave defendant's counsel the alternative, "You can go to the jury on the case, or I will dismiss it without prejudice to a new cause of action," it was error to dismiss the complaint without prejudice, plaintiff having made out a case as to most if not all of the items embraced in his claim.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, BIJUR, LYDON and FRANKENTHALER, JJ.