Majority
p. 624ELISHEWITZ v. LIPSHITZ. (Supreme Court, Appellate Term, First Department. December 24, 1914.) Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ.
Headnote
Courts (§ 189*)—Municipal Courts—Application for Directed Verdict— Withdrawal.Though in the Municipal Court both sides moved for a directed verdict, either party might withdraw his motion and resume his right to have the issues of fact submitted to the jury.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Jacob Elishewitz against Sam Lipshitz. From a judgment for defendant, entered upon a verdict directed by the court, plaintiff appeals. Reversed, and new trial ordered.
Nathaniel Levy, of New York City, for appellant.
Irving Rosenberg, of New York City, for respondent.
Both sides had moved for a direction of a verdict. Plaintiff’s attorney then asked to go to the jury, but his request was refused.
The learned judge below seems to have been of opinion that, after both sides had moved for a direction, neither might withdraw the motion and resume his right to have the issues of fact submitted to the jury. This, however, both as a general proposition and as applied to the situation developed in the case at bar, is erroneous. Charles H. Brown Paint Co. v. Charles J. Reinhardt, 210 N. Y. 162 , 163, 104 N. E. 124 .
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.
Cases cited
- Charles H. Brown Paint Co. v. Reinhardt 210 N. Y. 162 at 163, 104 p. 624