In that case the question arose just as it has arisen in this, except that the record showed that neither party objected to the reservation of the motion, and this tacit consent rendered it unnecessary to pass upon the effect of section 1187, and the order dismissing the complaint was affirmed, with the modification that the words "on the merits" were stricken out. In Russell v. Rhinehart ( 137 App. Div. 843) the practice adopted in the present case is condemned, but the conditions which called out that condemnation were different from those here existing. A motion was made at the close of the case for a nonsuit upon which decision was reserved.
We are unable, however, to direct that the verdict be reinstated for the reason that the trial court did not submit any specific question of fact to the jury as provided for in section 1187 of the Code of Civil Procedure, but directed them to render a general verdict. The court declined to pass upon the defendant's motion to set aside the verdict and to grant a new trial on the ground specified in section 999 of the Code of Civil Procedure, and under those conditions the verdict cannot be reinstated but a new trial must be ordered. ( O'Sullivan v. Knox, 81 App. Div. 438; Sullivan v. Metropolitan Street R. Co., 37 id. 491; Russell v. Rhinehart, 137 id. 843; Burns v. N.Y. Long Island Traction Co., 139 id. 146.) The judgment appealed from is, therefore, reversed and a new trial ordered, with costs to appellant to abide the event.
In Hoey v. Metropolitan Street R. Co., 70 A.D. 60, specific questions had been submitted to the jury and it was held that a nonsuit was proper, but that the complaint should not have been dismissed on the merits. In Russell v. Rhinehart, 137 A.D. 843, and Burns v. N.Y. L.I. Traction Co., 139 id. 146, it was stated that the practice of reserving decision upon a motion for a nonsuit and then taking a general verdict was unauthorized by the Code, but in Blyth v. Quinby Co., supra, it was held by a divided court that the court had power to reserve decision on the motion to dismiss and to grant it after a general verdict while recognizing that the Court of Appeals in Bail v. N.Y., N.H. H.R.R. Co., 201 N.Y. 355, expressly declined to pass upon the power of the court to do so. I have been unable to find, however, any case in which the right to nonsuit after a general verdict has been upheld where decision on the motion to dismiss was not reserved.
The effect was exactly the same as though the motion had been granted at the time it was made, and before the case went to the jury at all. It was pointed out by this court, Mr. Justice BURR writing, in the recent case of Russell v. Rhinehart ( 137 App. Div. 843), that the practice of reserving decision upon a motion for a nonsuit, and then taking a general verdict from the jury, is not only unauthorized by the Code, but is in some respects unfair, since, if the motion is ultimately granted, and the appellate court is of the opinion that it ought not to have been, the defendant is then put in a position where he is deprived of the action of the trial court upon a motion for a new trial on the ground that the verdict is against the weight of evidence, a motion which, as we have heretofore pointed out, is one which the justice presiding at the trial is peculiarly fitted to pass upon. ( Azzara v. Nassau Electric R.R. Co., 134 App. Div. 167.) The verdict of the jury in this case having been a general one, and the motion reserved by the court having been finally granted, we are of the opinion that the reasoning of Mr. Justice BURR in the case cited above is conclusive here, and that there is nothing to be done except to reverse the judgment and o
He urges that the Code provision cited is that "After the jury shall have rendered a special verdict upon such submission or shall have assessed the damage, the court may then pass upon the motion to nonsuit, or direct such general verdict as either party may be entitled to;" and he insists that, as the jury has not rendered a special verdict in this case, the motions fail with the disagreement. In Russell v. Rhinehart, 137 A.D. 843, the Appellate Division in this department disapproves the practice of reserving decision on a motion for nonsuit and granting such motion after a general verdict for the plaintiff, for the reason that, should the appellate court decide that the nonsuit is improper, the defendant is denied the right to have the trial judge pass upon a motion for a new trial under section 999 of the Code. In such case, notwithstanding the denial of the nonsuit, the defendant has the right to raise the question that the verdict is against the evidence and, under the practice disapproved, he is denied a ruling upon this question.