Opinion
May 11, 1927.
Appeal from Supreme Court of Erie County.
Israel Rumizen, for the appellants.
De Witt Clinton [ Myron S. Short of counsel], for the respondent.
The judgment of the Special Term appealed from, without granting a new trial, "reversed on the facts" a money judgment of the City Court of Buffalo entered upon the verdict of a jury in plaintiffs' favor. Defendant moved for a dismissal of the complaint at the close of all the evidence. Defendant demanded a new trial in its notice of appeal from the City Court judgment.
The action is to recover a sum of money claimed to have been deposited for the plaintiffs in defendant savings bank. A former judgment in plaintiffs' favor, affirmed at Special Term, was reversed by this court because the verdict was contrary to the weight of the evidence and a new trial was granted. ( 213 App. Div. 852. ) Two trials of the action have been had and a final determination of the controversy is desirable. However, this being a jury case, and there having been a fair controversy of fact, the Special Term, upon reversing on the facts, should have granted a new trial. (Civ. Prac. Act, §§ 584, 630; Lamport v. Smedley, 213 N.Y. 82; Middleton v. Whitridge, Id. 499.)
Therefore, we modify the judgment appealed from so that it shall provide for a new trial in the City Court of Buffalo, with costs in this court on this appeal to appellants to abide the event, and all other costs in all courts to respondent to abide the event.
All concur. Present — HUBBS, P.J., CLARK, CROUCH, TAYLOR and SAWYER, JJ.
Judgment modified so as to provide for granting a new trial in the Buffalo City Court and as modified affirmed, with costs of this appeal in this court to the appellants to abide the event, and all other costs in all courts to the respondent to abide the event.