Conway v. Crosby 272 A.D.2d 868

Order unanimously reversed and a new trial ordered, with costs to the appellant to abide the event, upon the ground that the complainant’s evidence was sufficient, as a matter of law, to establish prima facie a *869case against the defendant. Whether or not the court upon a retrial will adhere to its original decision after hearing the defendant or any witnesses he may choose to call is a matter for the court as the triers of fact to determine. Present — Martin, P. J., Glennon, Dore, Cohn and Peek,. JJ.