Watson v. Morton

Orders reversed [1051] on the law and the facts and new trial granted, with costs to the appellants to abide the event. Memorandum: The verdict was properly set aside as against the weight of the evidence but the county judge should have granted a new trial instead of directing a verdict for the petitioner. By moving to go to the jury on the facts, the petitioner abandoned his motion for a directed verdict. (Green v. Shute, 7 N. Y. Supp. 646.) The two motions are inconsistent. Moreover, the county judge failed to reserve decision on the motion for a directed verdict and he was without power to direct a verdict after the jury had been discharged, in the absence of a stipulation that he might so do. (Gilbert v. Finch, 72 App. Div. 38; affd., 173 N. Y. 455; Socony Burner Corporation v. Gald, 227 App. Div. 369; Kolacinski v. Blythe, 257 id. 918; Dougherty v. Salt, 227 N. Y. 200.) By moving to have the case submitted to the jury on the facts, or by failing to move for a directed verdict before the jury retired, the petitioner conceded that there was a question of fact for the jury to decide. (Hirsch v. Schwartz & Cohn, Inc., 256 N. Y. 7.) All concur, except Harris, J., not voting. (One order sets aside a verdict of no cause of action and grants directed verdict in a summary proceeding. The other order directs delivery of the premises and personal property to petitioner and issuance of warrant.) Present — Crosby, P. J., Cunningham, Dowling, Harris and McCum, JJ.