
    In the Matter of Summary Proceedings by George W. Watson, Respondent, against Ruth A. Morton and Russell A. Morton, Appellants.
   Orders reversed on the law and the facts and new trial granted, with costs to the appellants to abide the event. Memorandum: The verdict was properly set aside as against the weight of the evidence but the county judge should have granted a new trial instead of directing a verdict for the petitioner. By moving to go to the jury on the facts, the petitioner abandoned his motion for a directed verdict. (Green v. Shute, 7 N. Y. Supp. 646.) The two motions are inconsistent. Moreover, the county judge failed to reserve decision on the motion for a directed verdict and he was without power to direct a verdict after the jury had been discharged, in the absence of a stipulation that he might so do. (Gilbert v. Finch, 72 App. Div. 38; affd., 173 N. Y. 455; Socony Burner Corporation v. Gald, 227 App. Div. 369; Kolacinski v. Blythe, 257 id. 918; Dougherty v. Salt, 227 N. Y. 200.) By moving to have the case submitted to the jury on the facts, or by failing to move for a directed verdict before the jury retired, the petitioner conceded that there was a question of fact for the jury to decide. (Hirsch v. Schwartz & Cohn, Inc., 256 N. Y. 7.) All concur, except Harris, J., not voting. (One order sets aside a verdict of no cause of action and grants directed verdict in a summary proceeding. The other order directs delivery of the premises and personal property to petitioner and issuance of warrant.) Present — Crosby, P. J., Cunningham, Dowling, Harris and McCum, JJ.  