Clark v. Clark — 71 N.Y. St. Rep. 62

Majority

p. 62

Henry J. Clark, as Executor, etc., Resp’t, v. Cecelia Frances Clark, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 2, 1895.)

Headnote

Trial—Motion fob verdict.

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

Appeal from a jugment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

Lemuel Skidmore, for app’lt; Quigley & Farrar, for resp’t.

—The complaint alleged that Eliza Clark died possessed o£ 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 askecj 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. Koehler v. Adler, 78 N.Y. 290 ; Thompson v. Simpson, 128 id. 283; 40 St. Rep. 164 ; Yale v. Dart, 86 id. 40.

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

All concur.