
    Jacques Gelardin, Appellant, v. Flomarcy Company, Inc., Respondent.
    Argued June 5, 1944;
    decided July 19, 1944.
    
      Eli J. Blair and Sidney B. Cardoso for appellant.
    The Appellate Division had no power to dismiss the complaint on the merits because the defendant by introducing evidence waived the exception to the denial of the motion to dismiss the complaint at the end of the plaintiff’s case, and the failure of the defendant to move to dismiss the complaint at the end of the entire case is a concession and admission that there was a question of fact for submission to the jury. (People v. Davis, 231 N. Y. 60; Eno v. Klein, 236 N. Y. 543; Murtha v. Ridley, 232 N. Y. 488; Boyles v. Blankenhorn, 220 N. Y. 624; Porges v. U. S. Mortgage & Trust Co., 203 N. Y. 181; Erie R. Co. v. Linnekogel, 248 F. 389; Atkinson v. Sanders, 250 N. Y. 170; Imbrey v. Prudential Insurance Co., 286 N. Y. 434.)
    
      Louis B. Brodsky and Saul Gordon for respondent.
    The Appellate Division did exceed its powers in finally disposing of the case on defendant’s appeal. (Shotwell v. Dixon, 163 N. Y. 43; Doniger v. Berger, 241 App. Div. 23; Zeffiro v. Porfido, 265 App. Div. 185; Gambino v. John Lucas & Co., 263 App. Div. 1054; Dougherty v. Houlder, Weir & Boyd, Inc., 182 App. Div. 609; Raible v. Hygienic Ice & Refrigerating Co., 134 App. Div. 705; Matter of Burnham, 234 N. Y. 475.)
   Per Curiam.

No motion was made by the defendant at the close of the case for dismissal of the complaint or direction of a verdict. This was a concession by the defendant that there was evidence which warranted submission of the case to the jury. In that state of the record, the Appellate Division was without power to dismiss the complaint. (Eno v. Klein, 236 N. Y. 543.)

The judgment of the Appellate Division should be modified so as to order a new trial, with costs to the appellant to abide the event.

Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ., concur.

Judgment accordingly.  