Egan v. Boenig

Judgment reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event, upon the ground that the complaint states a cause of action, and that its dismissal upon the opening of plaintiff’s counsel was error. The opening is not in the record, but from such statements as were made by plaintiff’s counsel during the course of the colloquy between court and counsel, we are unable to say that plaintiff made any admission or statement of facts which “ completely ruined his case ” and from which alone, unless the complaint on its face failed to state a cause of action, would a dismissal upon counsel’s opening be justified. (See Backman v. Rodgers, 153 App. Div. 299, 301.) Lazansky, P. J., Rich, Young, Kapper and Hagarty, JJ., concur.