This action was brought to recover damages for personal injuries. Defendants appeared separately. At Trial Term plaintiff recovered a verdict against both defendants. The defendant Reuther did not appeal therefrom. Defendant Eichhammer appealed to the Appellate Division, and that court reversed the judgment of the trial court as matter of law and dismissed *Page 557
the complaint. Upon the trial at the close of the evidence counsel for both defendants omitted to move for a dismissal of the complaint or a direction of a verdict, thereby conceding that there was evidence which justified a submission of the case to the jury. The Appellate Division was, therefore, powerless to reverse the judgment upon the law and hold as matter of law that there was no evidence in the case to establish plaintiff's cause of action. (Murtha v. Ridley,
The judgment of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs to appellant in this court and the Appellate Division.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgment accordingly.