
    Eva Hoffman, as Administratrix, etc., of George B. Hoffman, Deceased, Appellant, Respondent, v. New York Central Railroad Company, Respondent, Appellant.
   This is an appeal from an order setting aside the verdict rendered in the above-entitled action in favor of the plaintiff upon the ground that it is contrary to and against the weight of the evidence and granting a new trial, and an appeal by the defendant from an order denying defendant’s motion for dismissal of the complaint made at the close of all the testimony. The judge at the trial in his opinion said “ that such testimony taken all together and when subjected to the test of reason and probability, fails to justify the conclusion that the verdict of the jury was in accord with its weight and credibility.” With this we are in accord. He said further, “ The dismissal of the complaint upon the merits is beyond the power of the court in its disposition of a motion for non-suit made at the close of the entire case, even though the reservation of decision upon that motion was acquiesced in by the parties.” The court had authority to dismiss the complaint and a review of all the evidence in the ease indicates that such relief should have been granted. (Kagan v. Avallone, 243 App. Div. 437.) The order, in so far as it provides that the verdict be set aside, is affirmed; in so far as it grants a new trial, and denies the defendant’s motion to dismiss the complaint, the order is reversed on the law and facts, and the said motion is granted, with costs. Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ., concur.  