118 N.Y.S. 844 | N.Y. App. Div. | 1909
The action was brought to recover damages alleged to have been sustained through the negligence of the defendant as a common carrier of passengers. The plaintiff was a passenger upon a steamboat owned and operated by the defendant, tie was injured by falling over an unguarded hatch on the unlighted forward deck of the vessel. The evidence was sufficient to make the issue of defendant’s negligence and plaintiff’s freedom from negligence contributing to his injury questions of fact for the jury. At the close of the evidence counsel for the defendant moved to dismiss the complaint upon the grounds that there was no proof of negligence on the part of defendant, and that plaintiff was shown guilty of contributory negligence. The trial court reserved decision on this motion “ until a motion be made for a new trial, if it be considered necessary.” The questions of fact were submitted to the jury in a charge of which the defendant cannot justly complain, and a verdict was rendered for the plaintiff, whereiqion counsel for the defendant renewed his motion to dismiss, and also moved to vacate and set aside the verdict as being contrary to the evidence, contrary to law, excessive, and against the weight of evidence. The record shows that judgment was rendered on the verdict in favor of the plaintiff for $250 damages, $2 costs and $24.50 disbursements — in all $276.50. Eighteen days later the justice who jiresided at the trial of the ease indorsed upon the record : “ Motion to dismiss case at close of all the evidence granted; also motion to set aside verdict. Judgment also vacated and set aside.”
After judgment was entered on the verdict the trial court was without power to grant a motion to dismiss the complaint .or to set aside the verdict. No motion is shown to have been made to vacate and set aside the judgment. The motion to vacate and set aside the verdict was made before the entry of judgment, and the record contains no further proceedings connected with the action, with the exception of the indorsement or order made by the court, and the entry of the judgment appealed from. After the rendition and entry of judgment no question remained before the court. The questions of fact involved were submitted under a charge free from error. The verdict was not against the weight of the evidence. The judgment was properly entered and it must be reinstated.
Upon both of these grounds the judgment and order of the Municipal Court are reversed and the verdict and judgment in favor of the plaintiff reinstated, with costs to the appellant.
Iíirsohbeeg, P. J., Jenks, Gaynor and Miller, J J., concurred.
Judgment and order of the Municipal Court reversed, with costs, and verdict reinstated, with costs.