M. Silberman, Inc. v. Abrams

Per Curiam: The “ 24th ” and the “ 26th ” proposed amendments should not have been allowed. The claim of defendants’ counsel that he did not move for a direction of a verdict is supported not only by his own affidavit and that of his trial assistant, but appears to find support in the probabilities and the context. Before the alleged motion of defendants’ counsel for a direction of a verdict was made the court had already indicated his view of the case and his intention to direct a verdict in plaintiff’s favor. It seems wholly improbable that defendants’ counsel when confronted with an adverse decision would have joined in plaintiff’s motion for a direction. Moreover, defendants’ counsel had theretofore clearly stated that he desired to go to the jury and immediately after it is claimed that he moved for a direction, stated that he wished to reserve his rights on appeal. While as a general rule it is the recollection of the trial justice that controls in a situation of this character, nevertheless, where there is nothing to show his recollection or that he acted thereon, his decision is not conclusive. (Jenkins v. Bishop, 133 App. Div. 517, 519; Zimmer v. Metropolitan Street R. Co., 28 id. 504.) The orders appealed from are, therefore, reversed, with ten dollars costs and disbursements, and the motions remitted for disposition in accordance with this opinion. All concur; present, Guy, O’Malley and Levy, JJ.