104 N.E. 124 | NY | 1914
The evidence in this case presented a question of fact whether the note in suit was an accommodation note, indorsed by the defendant, an irregular indorser, for the accommodation of the plaintiff, the payee. There were other issues raised by the pleadings, but no conflict in the evidence relating to them. At the close of the case the following occurred:
Defendant's counsel: "I renew my motion to dismiss the complaint upon the grounds previously stated."
Plaintiff's counsel: "I move for the direction of a verdict."
The court: "I will direct a verdict for the plaintiff for the full amount, $600.27."
Defendant's counsel: "Exception."
"Thirty days' stay after notice of entry of judgment.
"Sixty days to make and serve the case on appeal."
Defendant's counsel: "I want, in addition to exceping to your Honor's direction of a verdict, I want to ask leave to have the questions raised by the evidence submitted to the jury."
The court: "It is too late for that."
Defendant's counsel: "I move for leave to go to the jury upon the questions of fact presented by the evidence."
The court: "I direct a verdict for $587.48; that is what I did before. *165
"After that the defendant's counsel moved to submit the issues to the jury, which I denied."
Defendant's counsel: "I take an exception. Your Honor does not rule on the motion to dismiss the complaint."
The court: "When the defendant moves to dismiss a complaint and the plaintiff moves to direct a verdict, all questions of fact are before the Court."
Defendant's counsel: "Exception."
The defendant's request to go to the jury was not made too late. The point has been ruled upon so often that citations are unnecessary, but see Kinner v. Whipple (
The learned trial justice was not misled into thinking that only questions of law were involved. His ruling was distinctly put upon the ground that all questions of fact had been submitted to him, and that the right of the defendant to have the jury pass upon the facts had irrevocably been waived. He did not need or request information as to what questions of fact were in the case, and the defendant should not be deprived of the right to review the ruling actually made for the failure to specify a particular question. It is in order, then, critically to examine the authorities which it is asserted have established the practice requiring the application of a purely artificial rule to the decision of this appeal.
The main reliance of the respondent is upon Bowers v. OceanAccident Guarantee Corporation, Ltd. (
"Where, at the close of the evidence on the trial of an action in which more than one question of fact is involved, each party asks that a verdict be directed in his favor, and after the decision thereon the unsuccessful party asks that the case be sent to the jury without stating any question of fact he desires submitted, a denial of the motion is not error. (Mayer v.Dean,
The only dispute of fact in the case was over an item of $14.20 and a collateral matter not controlling in the ultimate disposition of the cause. Under such circumstances, a party, who had taken the position that only questions of law were involved, might well be required to specify a mere incidental dispute of fact, which otherwise would be likely to escape the attention of the court. In two of the cases cited in the above quotation the judgments were reversed, in one case for the exclusion of evidence, in the other on the exception taken to the denial of the motion to go to the jury. In the other case, that ofFlandreau v. Elsworth, the rule was stated as claimed, but at the end of an opinion devoted to showing that there were no questions for the jury and no errors committed by the trial judge. The rule as thus stated had its origin in cases likeWinchell v. Hicks (
The rule contended for by the respondent has often been stated, but, so far as we can discover, has not actually been applied except in cases in which the only dispute of fact was on some incidental matter not necessary to the decision of the main question in the case; for example see Bowers v. Ocean Accident Guarantee Corporation Ltd. (supra); Fuller Co. v.Schrenk (
As applied to the case at bar the said rule would be wholly arbitrary and would tend to make the trial of a cause a mere game of sharp wits. The rule declared in Second National Bank ofElmira v. Weston (supra) and the reasons in support of it are applicable to this case and should be adhered to.
The judgment should be reversed and a new trial granted, with costs to abide event.
WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, CHASE, COLLIN and CUDDEBACK, JJ., concur.
Judgment reversed, etc. *168