Opinion
February, 1934.
Present — Lazansky, P.J., Hagarty, Carswell, Scudder and Tompkins, JJ.
Order and judgment in so far as appealed from unanimously affirmed, with costs. The undisputed facts required a judgment for the plaintiff, under the pleadings herein, for the amount demanded. ( Costello v. Costello, 209 N.Y. 252, 258.) The denial of plaintiff's motion in respect of the first cause of action was not an absolute denial; it was merely tentative, as the language of the reservation with respect to section 459 of the Civil Practice Act indicated. The denial not being absolute, the court had the power to grant judgment on the first cause of action after it set aside the special verdict of the jury in respect to it. There was no question to submit to the jury on the first cause of action. The undisputed facts required judgment on that first cause of action in favor of the plaintiff. The practice, however, of denying such a motion and at the same time reserving with respect to it should not be followed, as it causes confusion and generates unnecessary appeals on practice. All that the court need do is to reserve on the motion at the time it is contemplating submitting special questions under section 459 of the Civil Practice Act.