two of them. On December 31, 1963 the time for filing expired and the Department of Buildings refused to examine further the plans. Appellant commenced action in 1965 claiming two causes of action: one for breach of contract, and the other for negligence. A jury trial was held, but after appellant completed its case, the court dismissed the complaint. It is true that: "Where a trial court dismisses a complaint at the close of the case, plaintiff is entitled to have the proof read in the light most favorable to him and to have the benefit of all inferences which can be reasonably drawn from the proof.”
(Mendelow v Slabodkin, 47 AD2d 712 .) However, even viewing the proof in the light most favorable to appellant, dismissal was proper. Appellant alleges that respondents breached their contract by failing to prepare plans acceptable to the Department of Buildings. But respondents never guaranteed or promised to produce plans acceptable to that agency. In fact, such result was explicitly denied in the October 10, 1961 writing. Appellant, in reality, is not arguing contract breach but tort, claiming, in effect, that respondents failed to perform to the level of competence reasonably expected of architects. As we said in
Carr v Lipshie (
8 AD2d 330 , 332, affd
9 NY2d 983 ): "This case falls within the orbit of those involving some form of malpractice by those engaged in one of the professions. Actions for breach of contract have been sustained where a specific result is guaranteed by the terms of the agreement, but not where the contracting party either expressly or impliedly promises to perform services of the standard generally followed in the profession or promises to use due care in the performance of the services to be rendered.” Clearly the contract cause of action was properly dismissed. Likewise, the tort cause of action was properly dismissed. In
Major v Leary ( 241 App Div 606 ) the court held that architects, like other professionals, must meet the test of ordinary and reasonable skill usually exercised by one of that profession. The mere failure to produce acceptable plans is not evidence of negligence. Furthermore, testimony by appellant’s expert witness, an architect with 27 years of experience, is not sufficient to support a claim of negligence. The expert testified that it is the nature of the objections to the plans, and not the number of objections, which is most important; that the absent survey and test boring plans were minor objections as opposed to a major design problem unconnected with respondents’ work; and that under the circumstances delays in production of the plans could be expected. We believe the reasoning in
Pipers v Rosenow (
39 AD2d 240 ), involving medical malpractice, is applicable. The court there said (p 243): "in the ordinary case of malpractice, a jury is not equipped to determine the issue of negligence simply as an inference from the circumstances * 8 * The information obtained from an expert witness supplies the jury with the means by which it can evaluate the conduct of the party charged with malpractice”. (Citations omitted.) The expert testimony herein has done nothing to enhance the proof of negligence above an inference from the circumstances. A prima facie case of tort was not established. Concur—Markewich, J. P., Birns and Nunez, JJ.; Murphy and Capozzoli, JJ., dissent in part in the following memorandum by Capozzoli, J.: I dissent insofar as the judgment at Trial Term dismissed the second cause of action against defendants architects. The dismissal came at the close of plaintiff’s evidence during this jury trial and, accordingly, "plaintiff is entitled to have the proof read in the light most favorable to him and to have the benefit of all inferences which can be reasonably drawn from the proof’.
(Mendelow v Slabodkin, 47 AD2d 712 .) It is clearly established by the proof in this record that the plaintiff was interested in buying property only if an apartment house could be built on