¶1The judgment should be unanimously reversed upon the law and facts and a new trial granted, with $30 costs to plaintiff to abide the event. The judgment was against the weight of the credible evidence.
¶2Appeal from the order should be dismissed. By proceeding to trial after denial of his motion for summary judgment, the plaintiff waived any right to summary judgment. (Corr v. Boggiano, 244 App. Div. 724.)
¶3Concur — Pette, Di Giovanna and Brown, JJ.
¶4Judgment reversed, etc.