
    Charles J. Owens, Appellant, v. David Jaller, Respondent.
   Motion for reargument denied. Present — Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ. The decision of this court handed down on July 22, 1933, is hereby amended to read as follows: Resettled order setting aside verdict and dismissing complaint modified by striking therefrom the provision dismissing the complaint and inserting a provision granting a new trial, with costs to appellant to abide the event. As so modified the order is affirmed. The judgment entered on said resettled order is reversed on the law. The court was without authority to dismiss «the complaint after motion to dismiss had been made and denied at the close of plaintiff’s case and at the close of the whole case. (Dougherty v. Salt, 227 N. Y. 200.) In any event, there was a question of fact for the jury In view of this decision the appeal from the order of June 16, 1932, setting aside the verdict and granting a new trial, is dismissed. Lazansky, P. J., Young, Tompkins and Davis, JJ., concur; Scudder, J., not voting. [See ante, p. 785.]  