Opinion
November 16, 1949.
Appeal from Supreme Court, Schenectady County.
Present — Foster, P.J., Brewster, Deyo, Santry and Bergan, JJ.
At the close of the testimony the Trial Term reserved decision upon defendants' motion to dismiss, and instructed the jury, without exception or request by the defendants, that negligence could be based on the record if the factual finding was favorable to plaintiff. When a verdict for plaintiff was returned, plaintiff moved to set it aside on the ground of inadequacy, and defendants moved to set it aside as against the weight of evidence and on the other grounds specified in section 549 of the Civil Practice Act. The court granted defendants' motion and ordered a new trial, but denied plaintiff's motion. It did not otherwise pass on the reserved motion to dismiss. Therefore, the Trial Term is deemed to have held, by its instruction to the jury, by failing to grant the motion to dismiss, and by its order for a new trial, that a prima facie case of negligence has been made out and that a question of fact exists. From this determination there is no appeal by the defendants. While both sides have argued the question of whether the verdict should have been set aside on the weight of evidence, the notice of appeal does not bring up a review of that order. It is directed to a "judgment entered herein" and to "an order * * * denying plaintiff's motion for a new trial." There can be no judgment in this state of the record and the appeal, as stated in the notice, is from the order denying the motion made by plaintiff to set aside the verdict because of inadequacy. As to this, plaintiff is not aggrieved since she asked for a new trial and that is what has been granted. Even if the notice of appeal from the "judgment" could be construed to bring up the order setting aside the verdict on defendants' motion, this would not be helpful to appellant, since she also appeals from the denial of her motion addressed to the verdict, and the verdict of which she there complains has been eliminated. The ground for a new trial has no significance since it could not be considered by the jury on the second trial whether it was granted for inadequacy or because the verdict was against the weight of evidence. The question presented by her motion thus becomes academic. Order appealed from, denying plaintiff's motion to set aside the verdict on the ground of inadequacy, unanimously affirmed, with $10 costs and disbursements.