
    PENISTON v. COLEMAN et al.
    (Supreme Court, Appellate Division, Second Department.
    October 7, 1910.)
    Action by William W. Peniston against John M. Coleman and another.
   PER CURIAM.

Motion denied, without costs. There is a dispute between the parties as to the exact language used when the motions to direct a verdict were made by plaintiff and defendants, respectively. As the return follows exactly the stenographer’s minutes as to the proceedings except Jhat it fails to show that before making the motion, plaintiff’s counsel directed him to take the stand, and that he walked within the inclosure about the witness stand and stood there while the motions were being made, without having been sworn, we think that the judge should not be asked to correct the return. Particularly is this so in view of the fact that in our opinion the point raised by the plaintiff-appellant that he should have been allowed to withdraw his motion to direct a verdict and introduce evidence is as fully presented by the return as made by the trial judge as it would be if the proposed amendments were allowed.  