
    MECHONZNIK v. WEINTRAUB et al.
    (Supreme Court, Appellate Term.
    November 30, 1908.)
    Tbial (§ 143)—Taking Case from Juey—Dismissal.
    Where, in an action for money loaned, plaintiff's testimony supported its cause of action and defendant’s testimony contradicted it, the court’s dismissal of the complaint because plaintiff had not sustained the burden of proof was erroneous, as invading the province of the jury.
    [Ed. Note.—Por other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Louis Mechonznik against Joseph Weintraub and another. Prom a Municipal Court judgment for defendants, dismissing the complaint at the close of the whole case, plaintiff appeals.
    Reversed, and new trial ordered.'
    Argued before GILDERSLEEVE, P. L, and MacLEAN and SEA-BURY, JJ.
    Morrison Schiff, for appellant.
    James Kearney, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SEABURY, J.

This was an action, to recover for money loaned. The plaintiff offered testimony in support of his cause of action. The defendants offered testimony contradicting it. The trial court dismissed the complaint upon the ground that the plaintiff had not sustained the burden of proof. In so doing, the court assumed to exercise the functions of the jury. There being a conflict in the testimony, it was. the province of the jury to decide the case, and it was clearly error for the trial court to dismiss the complaint upon the ground that the plaintiff had not proved his case by a fair preponderance of the evidence.

The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  