Schreyer v. Jordan — 61 N.Y.S. 889

Majority

p. 889

SCHREYER v. JORDAN.

(Supreme Court, Appellate Term.

December 28, 1899.)

Headnote

Trial—Motion for Verdict—Question. '

Where, at the conclusion of the evidence, each side moved for direction of a verdict, and plaintiff’s request was denied, and there was evidence sufficient to warrant a finding in defendant’s favor, the court was authorized to determine all questions in his favor, without submitting the same to the jury.

Appeal from city court of New York, general term.

Action by John Schreyer against John Jordan. From a judgment in favor of defendant, affirmed by the general term ( 58 N. Y. Supp. 206 ), plaintiff appeals. Affirmed.

p. 890

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Alex. Thain, for appellant.

John Hardy, for respondent.

This action was brought to recover damages for trespass to personalty, by the plaintiff, defendant’s grantee, of certain premises, from which had been removed by the defendant certain articles appertaining to the saloon tirade, and claimed by the plaintiff as fixtures to the realty to him conveyed. At the close of the case each side moved for the direction of a verdict. Plaintiff’s request was denied, the court directing the jury to find in favor of the defendant upon the evidence, which was sufficient to warrant the finding that the articles in question had been attached to the freehold for temporary purpose® of trade only. By requesting the court to determine the case as one of law,, the plaintiff waived his right, if, any, to go to the jury on questions of fact, and submitted all questions involved to the determination of the court. Kirtz v. Peck, 113 N. Y. 222 , 226, 21 N. E. 130 . The judgment of the general term, affirming the judgment of the trial term entered upon the direction of a verdict, should therefore be sustained.

Judgment affirmed, with costs. All concur.

Cases cited

Kirtz v. Peck 113 N. Y. 222 N.Y. 1889-04-16 at 226, 21 p. 890