
    Henry Herrmann, Frederick Herrmann and Leo Herrmann, composing the firm of H. Herrmann & Sons, Appellants, v. Ignatz Koref, Respondent.
    (Supreme Court, Appellate Term,
    April, 1905.)
    Trial — Right to go to jury after motion to direct verdict.
    Where á motion to direct a verdict is made hy both parties and defendant’s motion is denied, a request by plaintiff to go to the jury upon the only question in the case, made before any verdict was directed or recorded, is in time and a denial of such request is reversible error.
    Appeát, by the plaintiffs' from a judgment of the City Court of the city of New York in favor of the defendant, entered upon a verdict directed hy the' court and from an order denying plaintiffs’ motion for a new trial.
    Edward Herrman (Nathan D. Stern, of counsel), for appellants.
    Adolph Freyer, for respondent.
   Scott, J.

The defendant, sued for a balance of $100, pleaded payment. In order to prove his defense he sought to show that a sum originally paid hy him to Henry Herrmann personally on another transaction had hy agreement been applied to the payment of his indebtedness to the firm. Hpon this question the evidence, such as it was, was conflicting. At the close of the evidence both sides moved. for the • direction of a verdict. Defendant’s motion was denied. Before any verdict was directed or recorded, plaintiffs asked to go to the jury upon the question of the application.of the check for $100 given by defendant to plaintiffs, which was the only question in the case. This was denied and a verdict directed in favor of defendant. This was error. The request to go.to the jury was seasonably made and should have been granted. Eldredge v. Matthews, 93 App. Div. 356; Cullinan v. Furthmann, 70 id. 110.

Leventbitt and Gbeenbaum, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  