Diamond v. Diamond ( 1940 )

Per Curiam.

The credibility of the evidence offered by the plaintiff should not have been determined by the court on the defandant’s motion to dismiss the complaint, the defendant not having rested at the conclusion of the plaintiff’s case. The only question then presented was whether a prima facie cause of action was established by the plaintiff’s proof. Upon the present record the plaintiff established prima facie a cause of action and, accordingly, the complaint should not have been dismissed.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Present — Martin, P. J., O’Malley, Townley, Unwermyer and Dore, JJ.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event,