The exception to the refusal of the court to permit claimant's counsel to withdraw his motion for direction of verdict was not error, as above indicated. If claimant's counsel had requested the court to submit any specific issue to the jury, it seems that, even after the court had directed a general verdict for the government, it might have been error not to submit such specific issues for the jury's determination. Empire State Cattle Co. v. Atchison, T. & S. F. Ry. Co., 210 U.S. 1, 28 S.Ct. 607, 52 L.Ed. 931, 15 Ann.Cas. 70; Shultes v. Sickles, 147 N.Y. 704, 41 N.E. 574; Happel v. Lehigh Valley R. Co., 210 A.D. 461, 206 N.Y.S. 726; Brown Paint Co. v. Reinhardt, 210 N.Y. 162, 104 N.E. 124. The fact here is that no hasty action was taken by the court.
Appellant first moved to go to the jury in the event the court denied its motion for a directed verdict. While orderly procedure required that the court first pass upon the motion for a direction of a verdict and then, upon denial of appellant's motion, there might follow a motion on the part of appellant to go to the jury on all questions of fact ( Happel v. Lehigh Valley Railroad Co., 210 App. Div. 461), the court, nevertheless, was duly advised of the request of appellant to have the jury decide all questions of fact in the event the court denied its motion for a directed verdict. Furthermore, the request of appellant that the court submit questions of fact to the jury was aptly made, before the sealed verdict of the jury was opened.
y may recede from such motion even after it has been decided adversely to him and stand on his right to have a question of fact submitted to the jury if he so requests. * * * The rule that questions of fact as well as law are deemed to have been submitted to the court for determination where both parties ask the court to dispose of the case as one of law is somewhat strained and artificial. * * * Such rule rests on a presumed consent of the parties when they make such motions that the case be disposed of as one of law, but such presumption is repelled by an express request thereafter made to go to the jury upon a question of fact." This statement of the rule was reaffirmed in Brown Paint Co. v. Reinhardt ( supra, p. 165), in which case the opinion by Judge MILLER collates and analyzes various rulings which were formerly cited by those who held a contrary view. (See, also, Misner v. Kuchenreuther, 212 App. Div. 741, 745-747; Scott v. Empire State Degree of Honor, 204 id. 530, 532, 533; Happel v. Lehigh Valley R.R. Co., 210 id. 461, 462; Washington Finance Corp. v. Samuels, 224 id. 672; MacIvor v. Schwartzman, 226 id. 746; O'Brien v. Tilden, 228 id. 502, 504; Matter of Decker v. Story, 232 id. 866; Smith v. Stanton, 244 id. 804.) We also believe that the proof of circumstances which attended the signing of the instrument, now asserted to be decedent's last will, was such as to create a question of fact whether the manner of its execution was in accord with statutory requirements.
Judgment in favor of defendant, entered upon a directed verdict, reversed on the law and the facts and a new trial granted, costs to appellants to abide the event. We are of the opinion that the court erred in directing a verdict without specific denial of plaintiffs' motion for a directed verdict and in denying plaintiffs' motion to leave the issues to the jury for decision. ( Happel v. Lehigh Valley Railroad Co., 210 App. Div. 461; O'Brien v. Tilden, 228 id. 502.) In view of defendant's testimony that as she approached the intersection she passed a green light about fifty feet from the corner and that without again looking she continued to cross the intersection at a speed of twenty-five or thirty miles an hour, the finding that she was free from negligence is against the weight of the evidence.
Defendants' motion for the direction of a verdict did not bar their receding from that motion and requesting a submission of the question of fact to the jury. ( O'Connor v. Webber, 239 N.Y. 191, 198; Pneumatic Signal Co. v. Texas Pacific R. Co., 200 id. 125, 129; Kinner v. Whipple, 198 id. 585; Scott v. Empire State Degree of Honor, 204 App. Div. 530, 532; Happel v. Lehigh Valley Railroad Co., 210 id. 461, 463; Washington Finance Corporation v. Samuels, 224 id. 672.) Lazansky, P.J., Rich, Young, Scudder and Tompkins, JJ., concur.
Before granting the defendant's motion, the court should have denied plaintiff's motion and afforded her an opportunity to move to go to the jury. ( Happel v. Lehigh Valley R.R. Co., 210 App. Div. 461; International Battery Co., Inc., v. Westreich, 182 id. 843; Brown Paint Co. v. Reinhardt, 210 N.Y. 162; Mann v. Franklin Trust Co., 158 App. Div. 491.) Waiver of the right to have a jury determine issues of fact must rest on intent, and the assent implied by a motion for the direction of a verdict is expressly negatived by a request to go to the jury. ( O'Connor v. Webber, 239 N.Y. 191.)
Defendant's motion for a direction of a verdict did not bar his receding from that motion and requesting a submission of the question of fact to the jury. ( Happel v. Lehigh Valley Railroad Co., 210 App. Div. 461; Scott v. Empire State Degree of Honor, 204 id. 530; Kinner v. Whipple, 198 N.Y. 585; Brown Paint Co. v. Reinhardt, 210 id. 162.) Lazansky, P.J., Young, Hagarty, Seeger and Carswell, JJ., concur.
Neither of the learned trial counsel for defendant is a neophyte in this class of litigation. This action was tried before the decisions of the Court of Appeals in O'Connor v. Webber ( 239 N.Y. 191) and of this court in Happel v. Lehigh Valley Railroad Co. ( 210 App. Div. 461), but I see nothing in the action of the court in this case contrary to these decisions. What was the learned trial justice to do? Defendant's counsel asked him to submit the issues to the jury and the trial court complied with his request.
A party has a right to an explicit determination of his motion and an opportunity after such determination to make his request to go to the jury, and this right cannot be defeated by any quick action of the court in the direction of a verdict." ( International Battery Co., Inc., v. Westreich, 182 App. Div. 843, 845; Happel v. Lehigh Valley R.R. Co., 210 id. 461, 463.) It has also been held that the request to go to the jury, after the court directs a verdict in such a case, is not too late where the verdict has not actually been rendered by the jury upon the direction before the motion to submit the specific questions was made. "The action of the parties in jointly moving for the direction of a verdict does not reach the irrevocable stage until the verdict is actually pronounced by the jury." ( Mann v. Franklin Trust Co., 158 App. Div. 491, 493.) It also seems to have been held that the request is not too late if made "before the verdict had been received or entered.
February, 1925. Upon reargument, judgment reversed on the law, and a new trial granted, with costs to abide the event, upon authority of Happel v. Lehigh Valley Railroad Co. ( 210 App. Div. 461) and O'Connor v. Webber ( 239 N.Y. 191). Kelly, P.J., Rich, Jaycox and Young, JJ., concur, Kelby, J., dissents on the ground that the situation presented in the case at bar is different from the Happel case.