
    Joseph Salzman, Appellant, v. Max Konig, Respondent.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Municipal courts — Procedure — Pleading — Dismissal of complaint for failure to state cause of action — Leave to amend.
    In the Municipal 'Court of the city of Hew York, a motion made at the opening of a trial to dismiss the complaint for failure to state facts sufficient to constitute a cause of action should be treated as a demurrer and plaintiff given leave to amend.
    Appeal by plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Mew York, first district, borough of Manhattan.
    Mortimer W. Solomon, for appellant.
    Leon S. Kaiser, for respondent.
   Per Curiam.

Defendant moved at the opening of the trial to dismiss the complaint, upon the ground that it failed to state facts sufficient to constitute a cause of action. The court thereupon suspended the trial and stated that, in the event of a denial of the motion, he would set the cause down for a future day for trial. Subsequently he granted the motion and dismissed the complaint, with costs. This was error. The motion should have been treated as a demurrer and leave given to the plaintiff to amend his complaint. Rogers v. Fine, 49 Misc. Rep. 633; Carpenter v. Pirner, 52 id. 485.

.The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event. _

Present: Seabuby, Guy and Bijub, JJ.

Judgment reversed and new trial ordered.  