
    George A. Treadwell, App’lt, v. Horace E. Deming, Resp’t.
    
      (New York City Court, General Term,
    
    
      Filed November 20, 1894.)
    
    Trial—Dismissal of complaint.
    A dismissal of the complaint can be sustained only when, in no possible phase of the action, the plaintiff can recover.
    Appeal from a judgment, directed by the court, dismissing the complaint.
    Logan, Clark & Lemond, for app’lt; Stickney, Spencer & Ordway, for resp’t.
   Ehrlich, C. J.

In dismissing the complaint, the trial judge in effect decided that on no possible theory was the plaintiff entitled to recover anything from the defendant. He evidently based this conclusion on some mathematical calculation, drawn from the evidence, the accuracy of which does not -seem to be established. The case presented by the appeal book involves several theories, some dependent on the finding of certain facts, and others upon the construction and legaLeffect of writings and transactions which might bear different interpretations. The judgment appealed from can be sustained, if at all, upon one ground only—i. e. that in no possible phase of the action could the plaintiff recover. The case does not appear to be so situated, and in our judgment it ought to have gone to the jury on the different theories, with appropriate instructions, that the jury might draw proper inferences and reach correct conclusions. To this end the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.  