¶1There were controverted questions of fact in the record, and the motion of tenant’s counsel, promptly made, to go to the jury on the issues, should have been granted. The fact that the tenant’s counsel -had previously moved to dismiss the petition for failure of proof, and that the landlord’s counsel had *445moved for a direction of the verdict, which latter motion the court had granted, did not deprive the tenant of bis right to have the questions of fact tried by the jury. (Ruppert v. Singhi, 212 App. Div. 630; International Battery Co. v. Westreich, 182 id. 843.)
¶2Final order unanimously reversed upon the law, and new trial granted, with thirty dollars costs to appellant to abide the event.
¶3Present — Cropsey, MacCrate and Lewis, JJ.