
    Oreste Biogioni, an Infant, by Peccini Emelio, His Guardian ad Litem, Respondent, v. Eglee Bunting Company, Appellant.
    Second Department,
    April 27, 1906.
    Practice—motion to dismiss on the whole evidence at end of ease meces-, sary to raise questions of fact, on appeal,
    Although a defendant moves at the close of the plaintiff’s case for a dismissal upon various grounds andexcepts to the court’s refusal to dismiss^. he must renew the motion on the entire evidence at the close of the casa oiv he- admits that there arp questions for the jury. In the absence of such. ssstibYtM fafits found are not reviewable upm appeal.
    Hooker and Jerks, JJ., dissented, with opinion.
    
      Appeal by the defendant, the Eglee Bunting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of March, 1905, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 18th day of March, 19.05, denying the defendant’s motion for a new trial made upon the minutes.
    
      Gustav R. Hamburger, for the appellant.
    
      George W. Alger, for the respondent.
   Woodward, J.:

The plaintiff, an inexperienced Italian boy, seventeen years of age, was employed by the defendant in constructing a piece of railroad and ballasting the same in the city of Mount Yernon. A car loaded with stones and dirt was being pushed by hand up an incline track which had been constructed the day before. The plaintiff was one of the men so employed, under the direction of one Doran, the foreman. ' While the car was upon this incline the whistle blew indicating quitting time, and the gang abandoned their work and started away. The car thus left started back down the track, and the foreman ordered the plaintiff to take his bar and stop the car. At least there was evidence from which the-jury might properly reach this conclusion. In attempting to. obey this order of the foreman the plaintiff was crushed under the bar which he used in such a manner as to require the amputation of one of his limbs. The issues were submitted to the jury under a charge to which there are no pertinent exceptions, and a verdict for $10,000 has been found for the plaintiff. The defendant appeals from the judgment entered upon such verdict, and from the order denying a motion for a new trial upon the minutes, under the provisions of section 999 of the Code of Civil Procedure.

The action "is brought under the provisions of the Employers’ Liability Act (Laws of 1902, chap. 600), and the questions urged on this appeal are, for the most part, not open to the defendant, because not raised upon the trial. The defendant made a motion to dismiss at the close of plaintiff’s case on various grounds, and took an exception to the refusal of the court to grant the motion, but át the ¡close of the whole case this motion was hot renewed/and the rule is well established that a failure "to move at the close of the entire evidence for the dismissal of the complaint operates as' an admission or concession that there are questions for the jury, and these, when disposed of by the triers of fact, are not open to review iñ the absence of such a motion.

An examination Of the questions raised fails to convince-us that the judgment is contrary to 'law, and all of the questions of fact being conclusively established by the verdict of the jury, the judgment appealed from, as well as the order, must be affirmed.

The judgment and.order should be affirmed, with costs.

Hirschberg, P. J., and Gaynor, J., concurred (Hirschberg, P. J., in result); Jenks and Hooker, JJ., dissented.

Hooker, J. (dissenting):

In view of the large amount of the verdict, I "am of the opinion that the court cannot say that the remarks of the learned trial justice, commencing at folio 160, did not influence the size of the verdict, and perhaps this is a case where it should be reduced. The rule of law laid down in the prevailing opinion at the close of the. second paragraph is not the true one, "viz:, “and these, when disposed of by the triers of fact, are not open -to review in the absence of such a motion.” Should the defendant fail, after -having made a motion to dismiss tlm complaint at the close of plaintiff’s case, to move for a direction at ’ the closó óf the entire case, he might yet raise the question that the verdict was against the weight of evidence, by a motion for a new trial.

Judgment and order affirmed, with costs.  