
    Kingsway Construction Company, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    First Department,
    April 3, 1914.
    Appeal — reserved motion for direction of verdict — disagreement of jury —judgment necessary to appeal.
    Where the court reserves the decision of defendant’s motion for the direction of a verdict and subsequently the jury announce that they disagree, no appeal lies from a subsequent order denying the reserved motion. This, because, as the jury disagreed, no judgment was entered, and an appeal from a judgment is necessary for a review of such order, except in a case where it is expressly prescribed by law that a motion for a new trial may be made thereupon.
    Appeal by the defendant, Metropolitan Life Insurance Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 18th day of April, 1913, denying the defendant’s motion to dismiss the complaint made at the close of plaintiff’s case and also denying his motion for the direction of a verdict made at the close of the whole case.
    
      Frederick C. Tanner, for the appellant.
    
      George Edwin Joseph, for the respondent.
   Ingraham, P. J.:

This action was at law, the plaintiff demanding judgment for the sum of $10,000 for a breach of a contract to make a loan to be secured by a mortgage on real property. The case came on for trial at Trial Term before the court and a jury. At the end of the testimony the defendant moved for the direction of a verdict, which motion the court reserved without deciding it .and submitted the case to the jury, ordering a sealed verdict on the following morning, April 9, 1913. When the court convened on the following morning the jury was present, but before the announcement was made as to their conclusion the defendant asked that its motion for the direction of a verdict be disposed of by the court before the action of the jury was announced. The court said that he would reserve a determination of the motion until after the jury had reported, and in that counsel for both parties acquiesced. The jury then announced that they were unable to agree upon a verdict; the court took the motion under advisement and subsequently denied it, entering an order denying the motion, from which order the defendant appealed.

The first question presented is whether any provision of law justified the entry of an order upon such a motion and whether, on the appeal from such order, any question is presented to the Appellate Division. The ruling of the court was one upon the trial of the action before a jury. If the jury had agreed upon a verdict and judgment had been entered thereon, on an appeal from that judgment this court could have reviewed any ruling of the court at Trial Term, and if the defendant was entitled to have the jury directed to find a verdict in its favor which had been denied, the court could have reversed the judgment entered upon the verdict of the jury and upon such a motion direct a verdict under section 1317 of the Code of Civil Procedure (as amd. by Laws of 1912, chap. 380). The power of this court to act under that section is restricted to an appeal from a judgment. The jury having failed to agree upon a verdict, no judgment was entered, and there was, therefore, no appeal from the judgment before the court.

Section 994 of the Code of Civil Procedure provides how and when an exception may be taken after the close of the trial by the court or referee, and section 995 provides for the taking of an exception upon the trial by a jury. Section 996 provides that a ruling to which an exception is taken as prescribed in the preceding sections of the article can be reviewed only upon an appeal from the judgment rendered after the trial, except in a case where it is expressly prescribed by law that a motion for a new trial may be made thereupon, and these are the only provisions of law which justify a review of a ruling made upon a trial with or without a jury. An order may be entered upon the granting or refusal to grant an application to the court, and from such an order an appeal will lie if the order affects the substantial rights; but there was here no application to . the court for an order, simply a ruling made during the trial of the action to which an exception could be taken and such ruling could be reviewed only on an appeal from a judgment as a result of the trial upon which the ruling was made.

¡No case is cited which recognizes the practice adopted in this case, and it is contrary to the views expressed in Brauer v. Oceanic Steam Navigation Co. (77 App. Div. 407) and Monaco v. Lange (146 id. 18).

As the question as to whether or not the court should direct a verdict for the defendant is not before us for decision, we express no opinion thereon.

It follows that the appeal must be dismissed, with ten dollars costs and disbursements.

Clarke, Scott, Dowling and Hotchkiss, JJ., concurred. Appeal dismissed, with ten dollars costs and disbursements.  