
    Susan Greene, App’lt, v. Jay J. Miller, Resp’ts.
    
      (Supreme Court, Ceneral Term, Third Department,
    
    
      Filed December, 1893.)
    
    Appeal—Dismissal of complaint.
    If, in any view of the evidence, there are questions of fact which may be determined for the plaintiff, and which, if determined in hisfavor, will entitle him to recover, the complaint should not he dismissed.
    
      Edward J. Maxwell, for app’lt; W. B. Dunlap, for resp’t.
   Herrick, J.

— This is an appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint.

The plaintiff is a married woman, and brings this action against the defendant, who is a doctor, for an alleged criminal assault made upon her while attending her professionally.

At the close of the plaintiff’s evidence a motion was made to dismiss the complaint, which was granted. Ho requests to find on either matters of fact or law appear to have been made by either side. On the question of dismissing a complaint, or of granting a motion for a non-suit, that aspect of the evidence which is most favorable to the plaintiff must be taken. If, in any view of the evidence, there are questions of fact which might have been determined for the plaintiff, and which, if determined in her-favor, would entitle her to recover, the complaint should not be dismissed. Pratt v. D. H. M. F. Ins. Co., 130 N. Y., 206; 41 St. Rep., 303. Within these rules, as to the consideration of evidence, there was testimony given upon the trial in behalf of .the plaintiff, which, if found to be worthy of credit, it seems to me, entitled her to recover in this action.

The defendant was in. attendance upon the plaintiff professionally, visited her several times, and on the day in question came to her room and committed the assault; it is claimed that she consented to it, but in one portion of her testimony she testifies as follows: “ I tried to scream, but I was so horse I could not. I could not make a noise. I was too weak to make any resistance. No other person was in the room during this interview.” If this it true, then there was no consent by her.

It may very well be that this testimony, when considered with all the testimony in the case, and with that given by her upon the cross-examination, is not to be believed; but that question is one that must be decided upon a consideration of the whole case upon its merits; upon a motion for non-suit or a motion to dismiss the complaint, it seems to me it must be taken as true, and if true, that an assault was committed upon her, she is entitled to recover.

The case was, therefore, not disposed of upon its merits, as held in Smith v. Pelott, 44 St. Rep., 242 ; Forbes v. Chichester, 125 N. Y., 769; 36 St. Rep., 248.

. The judgment should be reversed, the referee discharged, and a new trial granted, costs to abide the event.

All concur.  