Appeal by plaintiff, as limited by his brief, from so much of an *906order and judgment (one paper) of the Supreme Court, Nassau County, dated September 22, 1967 and made after a jury trial, (1) as is in favor of defendant Berman upon the trial court’s dismissal of the complaint at the close of plaintiff’s case and (2) as denied plaintiff’s motion for a new trial. Order and judgment affirmed insofar as appealed from, without costs, on the authority of Wiener v. Weintraub (22 N Y 2d 330; see 3 Restatement, Torts, § 586). Hopkins, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.