Sampson v. Davis , 169 N.Y.S.2d 417 ( 1957 )

Judgment unanimously reversed upon the law and upon the facts, and a new trial ordered, with costs to the appellant to abide the event. The judgment entered herein upon a dismissal of the complaint at the close of the plaintiff’s case must be reversed and a new trial ordered. While it may be that if the allegations contained in the affirmative defenses are established that a judgment for the defendant would necessarily follow, we cannot make that assumption in the absence of such proof. Upon the record before us, there was sufficient proof to require a denial of the motion to dismiss. Concur—Botein, J. P., Rabin, Frank, Valente and McNally, JJ.