236 N.Y. 543 | NY | 1923
The judgment of the Appellate Division reversing on the law and the facts the judgment of the trial court and dismissing the complaint is modified by granting a new trial. No motion having been made at the close of the case by the defendant for a dismissal of the complaint or for a direction of a verdict, it constituted in this case a concession or admission upon his part that there was evidence which justified a submission of the case to the jury.
The Appellate Division, therefore, had no power to dismiss the complaint. (Civil Practice Act, sec. 584; Murtha v. Ridley,
Section 457 of the Civil Practice Act for the same reason is not in question.
The judgment appealed from should be modified so as to order a new trial instead of dismissing complaint, with costs to appellant to abide event.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN and CRANE, JJ., concur; ANDREWS, J., absent.
Judgment accordingly.