No motion was made by the defendant at the close of the case for dismissal of the complaint or direction of a verdict. This was a concession by the defendant that there was evidence which warranted submission of the case to the jury. In that state of the record, the Appellate Division was without power to dismiss the complaint. (Eno v. Klein, 236 N.Y. 543.)
The judgment of the Appellate Division should be modified so as to order a new trial, with costs to the appellant to abide the event.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ., concur.
Judgment accordingly.