Courtier v. Schaeffer

In a negligence action to recover damages for personal injury sustained by plaintiff’s intestate, the defendants appeal from so much of an order of the Supreme Court, Kings County, dated November 15, 1962, as denied their motions, made at the end of plaintiff’s case and at the end of the entire case, to dismiss the complaint, and as set the ease down for a new trial for a stated date. Appeal dismissed, with costs to plaintiff. Prior to submission of the case to the jury, the trial court had reserved decision on said motions and on a further motion by defendants for a directed verdict; and, after the jury returned a verdict in favor of defendant Aguas but against defendant Schaeffer, the trial court made the order under review, setting the verdict aside on the ground that it was inconsistent, and denying the motions for dismissal and for a directed verdict. On this appeal by both defendants, neither one has contended that the ground of inconsistency of the verdict did not justify the setting aside of the verdict. The appeal does not lie (Kiamie v. Equitable Life Assur. Soc. of U. S., 296 N. Y. 509; Doyle v. Alexander, 19 A D 2d 533; Flynn v. Board of Educ. of City of N. Y., 270 App. Div. 855; Carraody-Wait, New York Practice, vol. 8, pp. 516-517; vol. 9, pp. 508-509). Fruhwald v. Devere Trucking Corp. (16 A D 2d 695) and Schwartz v. City of Mount Vernon (12 A D 2d 816, mot. for lv. to app. den. 13 A D 2d 519, mot. for lv. to app. dsmd. 9 N Y 2d 863) are distinguishable. In those cases the juries had failed to return a verdict, and the appeals were therefore authorized under the last paragraph of the then applicable section 457-a of the Civil Practice Act. Kleinfeld, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.