
    Benjamin Turk, Respondent, v. Jack Hirsch, Appellant.
    Supreme Court, Appellate Term, Second Department,
    September, 1926.
    Trial — summary proceedings to dispossess — motion by tenant to dismiss petition for failure of proof — motion by landlord for directed verdict granted — subsequent motion by tenant to submit controverted issues to jury should have been granted.
    In summary proceedings to dispossess, where the record shows that there were controverted questions of fact, the tenant therein should have been permitted to go to the jury on the issues, and it was error for the trial court to deprive him of that right, although the tenants’ counsel had previously moved to dismiss the petition for failure of proof and a motion by the landlord’s counsel for the direction of a verdict had been granted. .
    Appeal by tenant from final order in summary proceedings in favor of the landlord.
   Per Curiam.

There were controverted questions of fact in the record, and the motion of tenant’s counsel, promptly made, to go to the jury on the issues, should have been granted. The fact that the tenant’s counsel -had previously moved to dismiss the petition for failure of proof, and that the landlord’s counsel had moved for a direction of the verdict, which latter motion the court had granted, did not deprive the tenant of bis right to have the questions of fact tried by the jury. (Ruppert v. Singhi, 212 App. Div. 630; International Battery Co. v. Westreich, 182 id. 843.)

Final order unanimously reversed upon the law, and new trial granted, with thirty dollars costs to appellant to abide the event.

Present — Cropsey, MacCrate and Lewis, JJ.  