
    (67 Misc. Rep. 419.)
    SALZMAN v. KONIG.
    (Supreme Court, Appellate Term.
    May 17, 1910.)
    Courts (§ 189)—Municipal Courts—Pleading—Motion in Nature of Demurrer.
    A motion to dismiss the complaint for insufficiency of facts stated, made at the opening of the trial in the Municipal Court, is in effect a demurrer, and leave must h.e given plaintiff to amend.
    [Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by Joseph Salzman against Max Konig. From a judgment for defendant, plaintiff appeals.
    Reversed, and new trial ordered.
    Argued before SEABURY, GUY, and BIJUR, JJ.
    Mortimer W. Solomon, for appellant.
    Eeon S. Kaiser, for respondent.
    
      
      For other-cases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

Defendant moved at the opening of the trial to dismiss the complaint, upon the ground that it failed to state facts sufficient to constitute a cause of action. The court thereupon suspended the trial, and stated that, in the event of a denial of the motion; he would set the cause down for a future day for trial. Subsequently he granted the motion, and dismissed the complaint, with costs. This was error. The motion should have been treated as a demurrer, and leave giyen to the plaintiff to amend his complaint. Rogers v. Fine, 49 Misc. Rep. 633, 97 N. Y. Supp. 1004; Carpenter v. Pirner (Sup.) 102 N. Y. Supp. 461.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.  