
    Gladys Schatten, Appellant, v. Samuel Vogel, Doing Business as Vogel's Pharmacy, Respondent.
   Judgment unanimously reversed on the law and the facts and a new trial ordered, with costs to abide the event. The dismissal of the complaint herein was based upon the direction of a verdict in favor of defendant. This may only be done where the trial court finds “that by no rational process could the trier of the facts base a finding in favor of the [party moved against] upon the evidence * * * presented.” (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 245; Wearever Upholstery & Furniture Corp. v. Home Ins. Co., 286 App. Div. 93, 95.) The trial court in a sufficient charge submitted to the jury the question of the duty of care owed by defendant as a landlord out of possession to the plaintiff. (Cf. De Clara v. Barber S. S. Lines, 309 N. Y. 620; Noble v. Marx, 298 N. Y. 106.) Moreover, the question of plaintiff’s contributory negligence, if any, was one for the determination of the jury. Applying the afore-stated rule to the present ease, it was error to direct a verdict in favor of defendant. We find, however, that the verdict of the jury upon the issue of contributory negligence was against the weight of the credible evidence. In the absence of an order, we affirm so much of the decision of the trial court as set aside the jury’s verdict. We reverse that portion which dismissed the complaint upon a directed verdict and instead direct a new trial. Concur — Rabin, J. P., Valente, McNally, Stevens and Bastow, JJ.  