
    William La Varre, Appellant, v. Warner Bros. Pictures, Inc., Respondent.
    Argued November 20, 1939;
    decided December 28, 1939.
    
      
      Stephen Callaghan, Ralph Stout and Thomas A. Gaffney for appellant.
    The evidence presented a question of fact for the jury. (Higgins v. Eagleton, 155 N. Y. 466; Sheldon v. Metro-Goldwyn Pictures Corp., 81 Fed. Rep. [2d] 49; Dam v. Kirk La Shelle Co., 175 Fed. Rep. 902.) The trial court erred in dismissing the complaint. (Foulke v. N. Y. Cons. R. R. Co., 228 N. Y. 269; Lombardi v. N. Y. State Railways, 224 App. Div. 438; Carlisle v. Norris, 215 N. Y. 400; Abramson v. Leo, 240 App. Div. 343; Layman v. Anderson & Co., 4 App. Div. 124.)
    
      George E. Quigley, Stanleigh P. Friedman and Harold Berkowitz for respondent.
    The trial court properly granted judgment dismissing the complaint. (Baulee v. New York & Harlem R. R. Co., 59 N. Y. 356.)
   Per Curiam.

Upon a reading of the record it cannot be said as a matter of law that the evidence does not present a question of fact which must in the first instance be submitted to the jury. The character of the negotiations between the parties, and defendant’s consequent access to plaintiff’s works, together with the basic similarities in the structures of the stories of plaintiff and those produced by defendant, are sufficient to require that the case be submitted to the jury.

The judgments should be reversed and a new trial granted, with costs to abide the event. (See 282 N. Y. 622.)

Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ., concur; Lehman, J., dissents; O’Brien, J., taking no part.

Judgments reversed, etc.  