We think that disputed questions of fact are presented by this record which required submission of the issues to the jury. The dismissal of the complaint, therefore, was error. The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs and disbursements to the appellant to abide the event. Present — Ingraham, P. J., Laughlin, Clarke, Scott and Miller, JJ. Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice. _