
    BARISH et al. v. KNEPPER REALTY CO. et al.
    (Supreme Court, Appellate Term.
    March 26, 1906.)
    Trial — Dismissal of Action.
    It is error for the court to dismiss the action of its own accord when plaintiffs have called but one witness, and ask to be. allowed, to put in their, proof.
    Appeal from Municipal Court, Borough of the Bronx, Second District.
    Action by William Barish and another against the Knepper Realty Company and another. From a judgment for defendants, plaintiffs appeal.
    Reversed.
    Argued before SCOTT, P. J., and O’GORMAN and NEWBUR-GER, JJ.
    Michael H. Wolfe, for appellants.
    Elias Rosenthal, for respondents.
   NEWBURGER, J.

An examination of the record in this cáse clearly shows that judgment herein must be reversed. The plaintiffs had called but one witness when the trial justice, upon his own motion, dismissed the complaint, although the attorney for the plaintiffs asked to put in his proof. Plaintiffs were entitled to their day in court. They had a right to present whatever evidence was at their command, and the ruling of the trial justice as to the law before the evidence had been submitted was clearly error. '

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.

O’GORMAN, J., concurs.

SCOTT, P. J.

(concurring). I concur. The proceedings on the trial, so far as they went, seem to indicate that the plaintiffs, if allowed to proceed, would have made out a prima facie case at least.  