Stephan Vos, Appellant, v. Eugene J. Fisher, Doing Business as Fisher Marine Co., Respondent, 21 A.D.2d 663

Amended judgment dismissing the complaint in a personal injury action during the course of the trial, unanimously reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. At the close of the plaintiff’s case, decision was reserved on a motion to dismiss. However, in the course of defendant’s case, the trial court granted the motion. We hold that the plaintiff’s proof was sufficient to present a prima facie case that Williams was acting within the scope of his employment for defendant at the time of the occurrence of the accident.

Whether the alleged negligence occurred at a time when the employee was acting within the scope of his employment is a question of fact for the jury (Burns v. City of New York, 6 A D 2d 30, 35). It was error, therefore, to dismiss the complaint in the course of the trial. 'Concur — Botein, P. J., Val ente, McNally, Stevens and Steuer, JJ.