Judgment of the County Court of Richmond county reversed upon the law and the facts, and a new trial granted, costs to abide the event. The action was tried by the court without a jury, but no decision, as required by section 440 of the Civil Practice Act, appears in the record. The judgment, however, recites a decision, and also that “ testimony and proof ” had “ been introduced ” by both parties, but no witnesses were sworn on behalf of the defendant, and the record does not show that the defendant had rested. The final motion in the action was for a dismissal of the complaint. Under these circumstances we think the action should be tried de novo. Kelly, P. J., Jayeox, Kelby, Young and Kapper, J.J., concur.