Opinion
March, 1905.
Motion for reargument denied. —
The trial court reserved the decision of defendant's motion for a nonsuit as permitted by section 1187 of the Code of Civil Procedure, submitting to the jury the specific question as to whether the money in question, deposited in lieu of bail, came from and was a part of the estate of Clara Loraine Richardson, deceased. The jury answered the question "yes," and fixed the amount to which plaintiff was entitled, in case the motion for a nonsuit should not be granted, at $1,115.37. The court subsequently, by order entered, denied the defendant's motion for a nonsuit and judgment was entered for plaintiff for the amount fixed by the jury. By the provisions of section 1187 of the Code of Civil Procedure on appeal from the judgment, where a special verdict is taken and the decision of motion for nonsuit reserved, this court may direct such judgment on the special verdict as either party may be entitled to. In our view of the case the defendant, on all the facts, was entitled to judgment notwithstanding the special verdict and conceding its correctness. Because of the fact that the plaintiff might be able to show further facts which might change the rights of the parties, we deemed proper to grant a new trial instead of directing judgment absolute for the defendant. Of this the plaintiff at least cannot complain. The rule sought to be invoked as to motion for new trial and exception as a reason for reargument does not apply. The motion for nonsuit was decided after the conclusion of the trial and was evidenced by an order formally entered at a time when there was no opportunity to take an exception. Under such circumstances the court will review the judgment as though a formal exception had been interposed. ( Wheeler v. Sweet, 137 N.Y. 439, 440.) The motion is denied.