Majority
p. 180Mehrhof Bros. Brick Mfg. Co., App’lt, v. Frederick Wood, Resp’t. (City Court of New York, General Term, Filed April 24, 1891.)
Headnote
Trial.The court becomes the trier of both the law and the fact when both parties move for the direction of a verdict.
Appeal from a judgment entered upon the verdict of a jury Tendered by the direction of- the court.
Lilian H. Andrews, for app’lt; Artemus B. Smith, for resp’t.
—This action was upon a promissory note for $1,500 to the order of plaintiff, and made by the defendant. There- is a conflict of evidence as to the circumstances under which the note was given; the plaintiff claiming that it was given in consideration of plaintiff’s agreement to return two notes of $750 each to one Russ, the maker thereof, and the defendant con
p. 181
tending that it was given without consideration and as a mere accommodation to the plaintiff’s payee, to be paid at maturity by the plaintiff. At the close of the testimony the defendant requested the court to direct a verdict in his favor, and the plaintiff moved for a verdict in its favor, and no requests were made by either party to go to the jury. The court denied plaintiff’s motion and directed a verdict for the defendant It is the established rule in this state, that where upon a trial the defendant, after the close of the testimony, moves to dismiss the complaint, or for the direction of a verdict, and the plaintiff requests the court to direct a verdict, this is in effect an agreement to submit the questions of fact to the court; and if there is any evidence to uphold the decision it will be sustained. In the case of Stratford v. Jones, 97 1ST. Y, 589, the late Judge Rapallo applied this rule as follows:
“But both parties requested the court to direct a verdict. Under these circumstances it has often been held that the parties must be deemed to have submitted the questions of fact, if any, to the decision of the court and waived the right to go to the jury.”
And this rule is adhered to in Provost v. McEnroe, 102 N. Y., 650 , and in Kirtz v. Peck, 113 id., 225 ; 22 N. Y. State Rep., 733, and when applied to the case now under consideration must lead to an affirmance, as disputed questions of fact were submitted to and determined by the judge at the trial.
Judgment affirmed, with costs.
Ehrlich, Ch. J., and Newburgee, J., concur.