Majority
In an action to impress a trust on real property, judgment dismissing the complaint reversed, on the law and the facts, and a new trial granted, with costs to appellant to abide the event. At the close of appellant’s case, respondents moved for a dismissal of the complaint and for judgment. In a colloquy that followed, the court, after indicating that appellant had not made out a case, said “ Both sides move for judgment. Judgment for the defendants.” The judgment in favor of respondents was, in effect, a holding that appellant had failed to make out a prima facie case. In our opinion, this was error. The evidence adduced, which the court stated it deemed “reliable”, was sufficient to establish a prima facie case. We deem the findings of fact numbered 9, 10 and 11 to be contrary to the weight of the credible evidence. We direct a new trial so that respondents may have the opportunity to adduce such testimony as may be available to them. Nolan, P. J., Wenzel, Schmidt, Beldock and Ughetta, JJ., concur.