Opinion
May 19, 1952.
In an action to recover a sum of money equivalent in amount to an alleged deposit made with defendant bank in Estonia for the benefit of plaintiff's assignors, the court reserved decision on the defendant bank's motion to dismiss the complaint made at the close of the plaintiff's case, and again at the conclusion of said defendant's case reserved decision on motions to dismiss the complaint and for a directed verdict. Thereafter, plaintiff recalled two witnesses and introduced additional evidence. At the close of all the evidence, defendant bank failed to renew its motions to dismiss and for the direction of a verdict. The issues were submitted to the jury, which found unanimously for the plaintiff. Said defendant thereupon moved, presumably pursuant to section 457-a of the Civil Practice Act, to set aside the verdict and for the dismissal of the complaint on the merits or, in the alternative, for a directed verdict or a new trial. The court in its disposition of the said motion found plaintiff's Exhibit 1 to have been improperly admitted in evidence, set aside the verdict as being contrary to the weight of the evidence and dismissed the complaint for failure to establish a prima facie case. Judgment reversed on the law and a new trial granted, with costs to abide the event. While we agree with the determination by the trial court that plaintiff's Exhibit 1 is inadmissible and that plaintiff did not establish a prima facie case, we may not sustain the dismissal of the plaintiff's complaint. Not having renewed its motions to dismiss and for a directed verdict at the close of all the evidence, defendant bank did not preserve its right to move for such relief after a verdict had been received, pursuant to section 457-a, and the trial court erred in directing judgment in its favor. Nolan, P.J., Carswell, MacCrate and Schmidt, JJ., concur.