
    CLEMENT v. CONGRESS SPRING CO.
    (Supreme Court, General Term, Third Department.
    December 3, 1895.)
    1. New Tbial—Failure to Move for Nonsuit or Direction of Verdict.
    The failure of defendant to move for a nonsuit, or to ask the court to direct a verdict in his favor, precludes him from moving to set aside the verdict as against evidence.
    
      
      2. Witness—Credibility—Question fob Juey.
    Where there are but two witnesses, one for each party, whose testimony is in direct conflict, it is for the jury to determine their credibility.
    Appeal from circuit court, Saratoga county.
    Action by James E. Clement against the Congress Spring Company to recover damages for having been discharged from defendant’s employment before the expiration of the term for which plaintiff was hired. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    J. W. Crane (A. W. Shepherd, of counsel), for appellant.
    J. W. Houghton, for respondent.
   PER CURIAM.

The sole question in this case was whether plaintiff was employed by defendant for one year from March 1, 1892, as he claimed, or whether such employment ceased on October 1, 1892, when he was discharged by defendant. On this question there were only two witnesses sworn,—the plaintiff in his own behalf, and Mr. Sheehan on the part of defendant. The testimony of the two witnesses was in direct conflict. Plaintiff swore positively that he was hired for one year from March 1,1892, while Mr. Sheehan testified that his employment ceased on October 1st. We are unable to see how we could properly reverse the judgment on the facts. The defendant made no motion for a nonsuit, or for a direction for a verdict, but acquiesced in the submission of the case to the jury. In Peake v. Bell, 7 Hun, 454, Learned, J., says:

“The failure of a defendant to move for a nonsuit, or to ask the court to direct a verdict for the defendant, is an admission that there is sufficient evidence to go to a jury; and the defendant is thereby precluded from moving to set aside the verdict as against evidence.”

See, also, Barrett v. Railroad Co., 45 N. Y. 628-632.

Had the defendant, however, moved for a nonsuit at the close of the trial, or for a direction for a verdict, this was not one of those cases where the trial judge could properly have withdrawn the case from the jury. It is only where there is a decided preponderance of evidence in favor of one of the parties that a court is justified in directing a verdict or granting a motion for nonsuit. See opinion of Potter, J., in Morss v. Sherrill, 63 Barb. 21. Under the doctrine laid down in the case cited and many other kindred cases, it was the province of the jury to pass upon the credibility of the two witnesses sworn in the case, there being no decided preponderance of evidence either way. We have examined the exceptions to the rulings of the court below taken on the trial, and think none of them require a discussion or a reversal of the judgment.

Judgment affirmed, with costs.  