209 A.D. 835 | N.Y. App. Div. | 1924
It was proper for the court to set aside the verdict in favor of plaintiff on the first cause of action on the ground that it was against the weight of evidence. It was error, however, for the court to dismiss the plaintiff’s second cause of action. While many of the questions propounded by plaintiff’s counsel were not proper questions, the court clearly indicated that no evidence would be received of the second cause of action. This, we think, was error. (See Northern Central R. Co. v. State, 29 Md. 420; Beach Contrib. Neg. [3d ed.] § 215; 2 Thomp. Neg. [2d ed.] § 1744.) The order in so far as it dismisses plaintiff’s second cause of action is, therefore, reversed on the law, and a new trial granted, with costs to abide the event. Rich, Jaycox, Manning, Kelby and Kapper, JJ., concur.
