Judgment unanimously reversed on the law and on the facts and new trial granted, with $50 costs to appellant to abide the event. The complaint was improperly dismissed at the close of plaintiff’s case “ for lack of proof sufficient in the law.” Such proof, inconclusive as it may have been, was adequate to survive defendants’ motion that they were entitled to judgment as a matter of law (CBLR 4401). (Cf. McCarthy v. City of New York, 96 N. Y. S. 2d 910, affd. 273 App. Div. 945.)
Concur — Botein, P. J., McNally, Stevens and Bastow, JJ.