Opinion
February 15, 1962
Appeal from the Erie County Children's Court.
Present — Williams, P.J., Bastow, Goldman, Halpern and McClusky, JJ.
Order unanimously reversed, without costs of this appeal to either party and matter remitted to the Erie County Children's Court for further proceedings in accordance with the memorandum. Memorandum: The complainant's testimony made out a prima facie case and it was erroneous to dismiss the case as a matter of law upon the defendant's motion at the close of the plaintiff's case. There may have been some inconsistency in the complainant's testimony but this presented a question of fact, to be passed upon by the court at the conclusion of the whole case after the defendant had rested (cf. Kazansky v. Bergman, 4 A.D.2d 79; Matter of Conway v. Crosby, 272 App. Div. 868; Commissioner of Public Welfare of the City of New York v. Arvay, 241 App. Div. 691).