138 N.E. 413 | NY | 1923
We agree with the learned Appellate Division that, for the reasons set forth in the opinion of MANNING, J. (
The appellant contends that the Appellate Division had no power to grant a final judgment for the reason that the proponent made no motion for the direction of a verdict on the question of testamentary capacity, and thereby conceded that the evidence of incapacity was sufficient to go to the jury. Under the provisions of the Code of Civil Procedure (sec. 1317) and the Civil Practice Act (sec. 584), governing appeals generally, the appellate court may reverse, affirm or modify the judgment or order appealed from but may render final judgment, when a trial has been before a jury, only upon the general or special verdict, or upon a motion to dismiss the complaint or direct a verdict.
The question is whether the omission of proponent's counsel to move for the direction of a verdict precluded the Appellate Division from directing final judgment on the ground that no sufficient evidence of testamentary incapacity was offered on the trial. Such is the rule in jury cases generally. (Seeman v.Levine,
The procedure on trial by jury in the Surrogate's Court has been assimilated to the procedure on jury trials generally (SeeMatter of Eno,
Historically, the power of the Appellate Division to direct final judgment in an action at law tried before a jury rests on the provisions of the Code of Civil Procedure, section 1317, as amended in 1912. (Middleton v. Whitridge,
The order appealed from should be affirmed, with costs payable out of the estate.
HISCOCK, Ch. J., HOGAN, CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Order affirmed, etc. *479