Clark v. Clark — 36 N.Y.S. 294

Majority

p. 294

CLARK v. CLARK.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Headnote

Moving for Verdict—Right to Jury.

A party moving for direction of verdict does not thereby lose the right, on denial thereof, to go to the jury.

Appeal from circuit court, Kings county.

Action by Henry J. Clark, as executor of the will of Eliza Clark, deceased, against Cecelia Frances Clark, to recover possession of a bank book. A judgment was entered on a verdict directed by the court in favor of plaintiff for $969.18 and costs, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, J J.

Lemuel Skidmore, for appellant.

Quigley & Farrar, for respondent.

The complaint alleged that Eliza Clark died possessed of a certain bank book. This was denied by the answer, and' the issue thus made was the only question in dispute. The defendant produced several disinterested witnesses who testified that,, several years before her death, Eliza Clark gave the book in question to the defendant. Their testimony was not shaken in any respect, and defendant’s motion for the direction of a verdict in her favor should have been granted.

After that motion was denied, defendant asked to be allowed to go to the jury. The circuit judge held that, by moving for the direction of a verdict, defendant had lost the right to go to the jury. That was an error. When the motion to direct a verdict in defendant’s favor was denied, defendant properly requested to go to the jury. Kœhler v. Adler, 78 N. Y. 290 ; Thompson v. Simpson, 128 N. Y. 283 , 28 N. E. 627 ; Yale v. Darl (Com. Pl.) 13 N. Y. Supp. 277 .

For these errors the judgment must be reversed, and a new trial ordered; costs to abide event. All concur.