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 given to the plaintiff to amend his com*420plaint. Rogers v. Fine, 49 Misc. Rep. 633; Carpenter v. Pirner, 52 id. 485.
.The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event. _
Present: Seabuby, Guy and Bijub, JJ.
Judgment reversed and new trial ordered.