Majority
Order unanimously reversed and a new trial granted, with costs to appellant to abide the event. Memorandum: The petition having been dismissed, appellant is entitled to have the evidence considered in its most favorable aspect (see Bodlovich v. Carucci, 38 A D 2d 699 ) and, since petitioner’s evidence was sufficient, as a matter of law, to establish a prima facie case, it was error to dismiss the petition before the respondent had rested, and a new trial should be had. Whether or not the court upon a retrial will adhere to its original decision after hearing the respondent or any witnesses he may choose to call is a matter for the court as the trier of the fact to determine (Matter of Conway v. Crosby, 272 App. Div. 868 ). (Appeal from order of Monroe County Family Court dismissing petition in paternity proceeding.) Present — Marsh, J. P., Witmer, Gabrielli, Cardamone and Henry, JJ.