The judgment of the Appellate Division reversing on the law and the facts the judgment of the trial court and dismissing the complaint is modified by granting a new trial. No motion having been made at the close of the case by the defendant for a dismissal of the complaint or for a direction of a verdict, it constituted in this case a concession or admission upon his part that there was evidence which justified a submission of the case to the jury.

The Appellate Division, therefore, had no power to dismiss the complaint. (Civil Practice Act, sec. 584; Murtha v. Ridley, 232 N. Y. 488.)

Section 457 of the Civil Practice Act for the same reason is not in question.

The judgment appealed from should be modified so as to order a new trial instead of dismissing complaint, with costs to appellant to abide event.

Judgment accordingly.