Judgment reversed upon the law, on argument, and a new trial granted, costs to abide the event. This court again disapproves of the practice of dismissing complaints on the pleadings and the opening of counsel except where it appears beyond doubt that no question of fact is involved. Here questions of fact were presented. If there were a variance between pleading and statement, plaintiff’s effort toward amendment should have been heeded. Lazansky, P. J., Rich, Young, Kapper and Hagarty, JJ., concur.