¶1In the condition of the proofs when plaintiff rested, defendant also resting on the statement of the trial judge that he gave defendant’s counsel the alternative, “ You can go to the jury on the case, or I will dismiss it without prejudice to a new cause of action,” it was error to dismiss the complaint without prejudice, plaintiff having made out a case as to most if not all of the items embraced in his claim.
¶2Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
¶3All concur; present, Bijur, Lydon and Frankenthaler, JJ.