Mary D. G. v. Arnesto C.

Order unanimously reversed and a new trial granted, with costs to appellant to abide the event. Memorandum: The petition having been dismissed, appellant is entitled to have the evidence considered in its most favorable aspect (see Bodlovich v. Carucci, 38 A D 2d 699) and, since petitioner’s evidence was sufficient, as a matter of law, to establish a prima facie case, it was error to dismiss the petition before the respondent had rested, and a new trial should be had. Whether or not the court upon a retrial will adhere to its original decision after hearing the respondent or any witnesses he…