Opinion
December 30, 1910.
Walter L. Bunnell, for the appellant.
Lowen E. Ginn, submits for the respondents.
This action is upon a promissory note. The defendants asked and obtained the affirmative without objection. They read the note in evidence, and then offered testimony in their defense. When the defendants rested, plaintiff moved for judgment — for a direction of a verdict in favor of plaintiff. The court then asked: "Are there any other motions?" Thereupon the defendants moved that the court direct a verdict for them on the evidence. The court then said: "I direct a verdict for the defendant." Plaintiff then asked to go to the jury on the question of fact. The court said: "You are too late, now." Plaintiff then asked permission to take the witness stand. The court said: "You are too late, now. You should have withdrawn your motion." Plaintiff then asked if he might withdraw the motion, and the court replied: "Not now, the case is disposed of," and, addressing the jury, "You may go home now, gentlemen." Plaintiff's counsel then excepted, and asked the court for permission to go to the jury on the question of fact. The court replied: "The case is disposed of, it is not before me now." The return shows: "Case tried. Counsel for plaintiff asks Court for direction of verdict. Counsel for defendant asks Court for direction of verdict. Court directs verdict in favor of defendant. Judgment is rendered for the defendant, dismissing the complaint on the merits, with costs." The proper practice in such case is a direction of a verdict for the defendant. ( Niagara Fire Ins. Co. v. Campbell Stores, 101 App. Div. 400; affd., 184 N.Y. 582; Stumpf v. Hallahan, 101 App. Div. 383; affd., 185 N.Y. 550.) A party who requests a direction of a verdict is not thereby precluded from a request for submission of a question of fact to the jury. ( Shultes v. Sickles, 147 N.Y. 704; Clark v. Clark, 91 Hun, 295; Switzer v. Norton, 3 App. Div. 173. ) I think that the plaintiff was entitled to a ruling upon his motion, whereupon he might have had an opportunity to request a submission to the jury. ( Carr v. Sullivan, 68 Hun, 246.) As it was, the court entertained his motion without disposition of it, and thereupon in a breath granted the motion of the defendants.
Without any expression as to the merits, I advise that the judgment and order be reversed, and that a new trial be ordered, costs to abide the event.
HIRSCHBERG, P.J., WOODWARD, BURR and RICH, JJ., concurred.
Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event.