In the absence of a special verdict in this case, we are unable to determine what facts the jury deemed established, whether Reingold did or did not make the statement to defendant which defendant claims that he did; whether plaintiff did or did not assert his right to retain the money for services when defendant first spoke to him about it; or whether, even conceding all that defendant claimed to be true, a prudent man, exercising reasonable care, would have been justified in presuming that the act of plaintiff in retaining the money was criminal in character. The cases cited by the appellant in support of his contention that the verdict should be reinstated are cases where a special verdict was had in accordance with the provisions of section 1187. ( Sullivan v. Metropolitan Street R. Co., 37 App. Div. 491; Griffiths v. Metropolitan Street R. Co., 63 id. 86; Corson v. City of New York, 113 id. 679.) The case of Levy v. Grove Mills Paper Co. ( 80 App. Div. 384) was a case where a decision on a motion for a nonsuit was reserved, a general verdict was taken, and thereafter the verdict set aside and the complaint dismissed, and the exceptions ordered to be heard in the first instance by the Appellate Division. The court in that case say that the practice was irregular, but it would appear from the record that the parties acquiesced in the action of the court in reinstating the verdict and entering judgment thereon.