Per Curiam. On the testimony adduced in this record, oral and documentary, the plaintiff proved a prima facie case and the court should not have dismissed the complaint at the close of plaintiff’s case in a trial before the court and a jury. The issues were issues of fact and not of law involving in part issues relating to credibility and the real factual relationship of the parties as distinguished from the form thereof.
Even if, assuming but not deciding, that the measure of damages sought may not have been proper, that does not invalidate the cause of action alleged and established at least prima facie (Towers Realty Corp. v. Fox, 278 App. Div. 74, 75 [1st Dept., March 27, 1951]). The issues were for the jury on a proper charge. The judgment appealed from directing a verdict in defendant’s favor and dismissing the complaint at the close of plaintiff’s case should be reversed and a new trial granted, with costs to abide the event.
Loading…