
    Ernst Smith, Appellant, v. Emelie C. Stork and Reba Tyler Jackson, as Administratrix, etc., of Susan M. Van Namee, Deceased, Respondents.
    Second Department,
    May 1, 1908.
    Trial — verdict against weight of evidence — dismissal on merits.
    Where a verdict for the plaintiff is against the weight of evidence, the trial court should not dismiss .the complaint upon the merits, but should order a new trial conditioned upon payment of costs.
    Appeal by the plaintiff, Ernst Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of December, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 20th day of December, 1906, setting aside the verdict of a jury in favor of the plaintiff and against the defendant Jackson, and directing the dismissal of the complaint upon the merits.
    
      John T. Fenlon [John V. Judge with him on the brief], for the appellant.
    
      Robert Stewart, for the respondents.
   Hooker, J.:

Plaintiff invites the review of an order granted by the learned trial court dismissing his complaint after a verdict in his favor. From the opinion it would seem that two reasons were assigned for interfering with the verdict of the jury—one, that there was no evidence from which the jury were warranted in finding that the attorney was authorized to act for the defendants ; the other was that the verdict was against the weight of evidence. If there was any evidence to present to the jury the complaint should not have been dismissed, and the order may be sustained with the modification that the verdict was against the weight of the evidence. The jury were justified in finding that defendants and plaintiff were parties defendant in an action brought by the Farmers’ Loan and Trust Company against them and others to determine the ownership of a fund then in the custody of the plaintiff in that action; that this plaintiff through his attorney called on the defendant Jackson, relative to an adjustment of the claim of plaintiff and said Jackson to said fund, and that she, said Jackson, referred plaintiff’s agent to one Hartman, who in turn sent him to Robert Stewart, her attorney; that afterwards plaintiff’s attorney Fenlon took up the matter of said adjustment or settlement with said Robert Stewart by correspondence and personal interviews, with the result that said Stewart’s client was to receive $2,000 of said fund, and from said amount of $2,000 plaintiff was to be paid $150; and this action is brought to recover the latter" sum. Many circumstances corroborating these facts developed on behalf of the plaintiff. The defendants offered evidence from which the jury would have been warranted in determining the issue in defendants’ favor. The trial court, having seen all of the witnesses and considered fully the evidence, was of the opinion that the verdict ought not to stand because the weight of the evidence was with the defendants. The most it should have done, however, was to order a new trial rather than to dismiss the complaint.

The order should be modified by striking out the provision for the dismissal of the complaint, and should further provide that the defendants pay the costs and disbursements of the trial as a condition for a new trial; and as so modified affirmed, with costs to the plaintiff in this court.

Woodwabd, Jenks, Gtaynoe and Milleb, JJ., concurred.

Order modified by striking out the provision for the dismissal of the complaint, and further providing that the defendants pay the costs and disbursements of the trial as a condition for a new trial, and as so modified affirmed, with costs to the plaintiff.  