Herrmann v. Koref — 93 N.Y.S. 488

Majority

p. 488

HERRMANN et al. v. KOREF.

(Supreme Court, Appellate Term.

April 24, 1905.)

Headnote

Trial—Request to Go to Jury—Time fob Making Request.

Both parties moved for the direction of a verdict, defendant’s motion being denied, and before any verdict was directed or recorded plaintiff asked to go to the jury. Reid, his request was seasonably made.

Appeal from City Court of New York, Trial Term.

Action by Henry Herrmann and others, composing the firm of Henry Herrman & Sons, against Ignatz ICoref. From a judgment in favor of defendant and from an order denying plaintiffs’ motion for a new trial, plaintiffs appeal. Reversed.

Argued before SCOTT, P. J., and EEVENTRITT and GREEN-BAUM, JJ..

p. 489

Edward Herrmann (Nathan D. Stern, of counsel), for appellants.

Adolph Freyer, for respondent.

The defendant, sued for a balance of $100, pleaded payment. In order to prove his defense he sought to show that a sum originally paid by him to Henry Herrmann personally on another transaction had by agreement been applied to the payment of his indebtedness to the firm. Upon this question the evidence, such as it was, was conflicting. At the close of the evidence both sides moved for the direction of a verdict. Defendant’s motion was denied. Before any verdict was directed or recorded, plaintiffs asked to go to the jury upon the question of the application of the check for $100 given by defendant to plaintiffs, which was the only question in the case. This was denied, and a verdict directed in favor of defendant. This was error; The request to go to the jury was seasonably made, and should have been granted. Eldredge v. Matthews, 93 App. Div. 356 , 87 N. Y. Supp. 652 ; Cullinan v. Furthmann, 70 App. Div. 110 , 75 N. Y. Supp. 90 .

Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.

Cases cited

Cullinan v. Furthman 70 App. Div. 110 N.Y. App. Div. 1902-03-07 p. 489