We think that the evidence adduced by the plaintiff established a prima facie case, and it was error to dismiss the complaint. The letter of the attorney for the plaintiff, written after the commencement of the action, was incompetent to destroy the cause of action, and was improperly admitted unless set up by way of supplemental pleading. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. Present —Ingraham, P. J., Laughlin, Scott, Dowling and Hotchkiss, JJ. Dowling, J., dissented. Judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.