
    Thaddeus J. Syczur, Doing Business as Shur Construction Company, Appellant, v. John Sadaj et al., Respondents.
   Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: In this action plaintiff contractor sued defendants homeowners in two causes of action for balance alleged due upon the contract or for the fair and reasonable value of the work and materials supplied in the construction of defendants’ house. At the close of the plaintiff’s proof, the court granted defendants’ motion for dismissal of the complaint upon the ground that the plaintiff had failed "to establish a prima facie case, and I feel that the element of default on the part of the defendants has not been established as a matter of law.” On cross-examination of the plaintiff, defendants’ attorney conceded that there was some balance due plaintiff. Furthermore, upon argument of the motion to dismiss, the court said: “ The Court finds that on October 24th by his demand of a sum of $3,500, which has not been justified by the proof, the proof at best is $3,500 [sic] that he was entitled to, and that is a question of fact, however, which I will submit to the jury”. Notwithstanding the admission by defendants’ attorney that at least $513 was due plaintiff and the statement by the court that there was a question of fact for the jury, which the record indicates there was, the court, nevertheless, granted the motion to dismiss “ as a matter of law ”. Under these circumstances, plaintiff is clearly entitled to a new trial. All concur. (Appeal from a judgment of Erie Trial Term dismissing plaintiff’s complaint as a matter of law at the close of plaintiff’s ease on motion of defendants, in an action for breach of contract and quantum meruit.) Present — MeCurn, P. J., Williams, Bastow, Goldman and Halpem, JJ.  