Vanderhule v. Berinstein

284 A.D. 1089 | N.Y. App. Div. | 1954

A question has arisen as to the form of the order to be entered upon the court’s decision herein. It appears that, after the coming in of the jury’s verdict in favor of the plaintiffs, the trial court granted the defendants’ motion to dismiss the complaint. The trial court’s order was not embodied in a formal written order but was entered in the clerk’s minutes pursuant to the court’s direction. This order necessarily carried with it, by implication, a setting aside of the jury’s verdict (see Civ. Prac. Act, § 457-a). It was this order which this court modified by striking out the direction for a dismissal of the complaint and by substituting a direction for a new trial. However, in order to avoid any question as to the form of the order to be entered upon the court’s decision, we amend the decision to read as follows: The judgment dismissing the complaint, and the order upon which it was based, are reversed and the jury's verdict in favor of the plaintiff is set aside and a new trial is ordered, all upon the law and the facts, with costs to abide the event. Foster, P. J., Bergan, Halpern. Imrie and Zeller, JJ., concur. [See 285 App. Div. 290.]