Opinion
January 31, 1961
Judgment entered on February 24, 1960, dismissing the complaint, unanimously reversed, on the law and on the facts and a new trial ordered, with costs to abide the event. At the opening of the trial the court stated: "Counsel have agreed here to submit this case to the court on an agreed statement of facts." The record fails to set forth the facts agreed upon and it appears that material facts are in dispute. On this record there is no evidentiary basis for the judgment. The record, incomplete as it is, suggests the feasibility of a trial of the issues raised by the pleadings.
Concur — Botein, P.J., Rabin, Valente, McNally and Stevens, JJ. [ 23 Misc.2d 323.]