
    Marion G. Murphy, Appellant, v. John G. Murphy, Respondent.
    (Submitted June 3, 1929;
    decided June 11, 1929.)
    
      Peter W. Quinn for appellant.
    A new trial should be granted as a matter of law. (Boss v. Caywood, 162 N. Y. 259; Mirizio v. Mirizio, 248 N. Y. 175; Hofmann v. Hofmann, 232 N. Y. 215; Waltermire v. Waltermire, 110 N. Y. 183; Caldwell v. Lucas, 233 N. Y. 248.) The judgment of the Appellate Division required a new trial. (Bonnette v. Molloy, 209 N. Y. 167; Matter of Muller, 96 App. Div. 619; Caldwell v. Nicholson, 235 N. Y. 209.)
    
      Francis X. Dineen and Theodore P. Feury for respondent.
    The judgment of the Appellate Division did not require new findings of fact or conclusions of law nor a new trial. (Bonnette v. Molloy, 209 N. Y. 167.)
   Per Curiam.

The judgment should be reversed and a new trial granted, with costs to abide the event, upon the ground that the evidence presented by she plaintiff established a prima facie case, and it was so held at Special Term. That court made findings of fact and conclusions of law in favor of the defendant and dismissed the complaint upon the merits. The Appellate Division reversed all the findings made by the Special Term and struck out of the judgment the words on the merits,” and affirmed the judgment as modified. It did not make new findings. Its judgment is not, therefore, based upon any findings. Without findings in favor of the defendant it should have reversed the judgment and ordered a new trial as plaintiff had made out a prima facie case.

The judgment should be reversed and a new trial granted, with costs to abide the event upon the grounds stated in this memorandum.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment reversed, etc.  