116 N.Y.S. 969 | N.Y. App. Div. | 1909
At the close of all the evidence defendant renewed his motion for ' a nonsuit, made at the close of plaintiff’s evidence, and plaintiff moved for direction of verdict for the amount claimed in the complaint. The court directed a verdict for defendant and the verdict was duly rendered and taken, pursuant to: the direction. Defendant’s motion for a nonsifit, being in fact a motion to- dismiss the complaint, is equivalent- to a, request to direct a verdict in favor of defendant. (Dillon v. Cockcroft, 90 N. Y. 649, 650.) The'effect of these motions,, as has been held,, “ amounted 'to-a submissionof the whole case to the trial judge, and his decision upon the facts has the same effect as if the jury had found a verdict” in favor of the party for whom a verdict was directed. ( Westervelt v. Phelps, 171 N. Y. 212, 218.) It follows, of course, that all the controverted facts and all inferable facts in.support of the judgment will be deemed conclusively established in favor of the party for whom the verdict was directed, provided there is evidence to support such findings. (Smith v. Weston, 159 N. Y. 194, 198; Thompson v. Simpson, 128 id. 270, 283.)
While there are not many seriously controverted questions of ’.material facts presented by the evidence in the ease,.'yet it did become material to determine whether, in the first instance at least, the plaintiff’s return of tli'e diamonds was voluntary, or by reason of the fact that he feared the result of legal proceedings,, which he.had been advised- were contemplated and about to be begun, by defendant, which might disclose to defendant the fact that plaintiff then had the lost diamonds in his possessiom >
As a further ground- upon which the direction of .verdict might be sustained, we may hold that the trial court would have: been warranted in finding that plaintiff purchased the diamonds; of Katz ' with the knowledge: of facts from, which the only inference,, which he could and did draw, was that they were stolen and stolen froto defendant. He had some knowledge of values of such articles, as lie had at one time dealt in them to some extent. lie had expert advice, which lie personally sought, that the diamonds were worth much more than he was asked to pay for them. Presumably, at least,-he had seen defendant’s ■ advertisement of-reward for -the'-lost diamonds, before he-bought the second stone. His persistent refusal to
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.