
    The O’Malley Cooperage, Inc., Respondent, v. “ George ” Laubentracht, First Name “ George ” Being Fictitious, the Person Intended Having a Place of Business at 105 Hudson Street, New York City, Appellant.
    Supreme Court, Appellate Term, Second Department,
    October 25, 1924.
    Trial — motion by both parties for directed verdict leaves all questions to court — defendant by moving for directed verdict did not waive right to go to jury though application was made after court had granted plaintiff's motion for directed verdict — motion to go to jury not defective for failure to specify particular question.
    Where both plaintiff and defendant move for the direction of a verdict upon the complaint and counterclaim, all questions of law and fact are left to the court.
    It was reversible error for the trial court to deny defendant’s application to go to the jury, after the court had granted plaintiff’s motion for a directed verdict, since defendant did not waive his right to go to the jury though he had previously moved for a directed verdict. Defendant’s failure to specify the particular question to be submitted to the jury did not impair the effectiveness of his motion.
    Appeal from a judgment of the Municipal Court, Borough of Brooklyn, Third District.
    
      John B. Coppola, for the appellant.
    
      E. A. Deutschman, for the respondent.
   Pee Curiam:

Judgment unanimously reversed on the law and new trial granted, with thirty dollars costs to the appellant to abide the event.

Both plaintiff and defendant having moved for the direction " of a verdict upon the complaint and counterclaim, all questions of law and fact were left to the court.

Defendant did not waive his right to go to the jury after the court granted plaintiff’s motion, since, after the court had granted the plaintiff’s motion, defendant moved to go to the jury. The motion to go to the jury was made in time. Its effectiveness was not impaired by a failure to specify the particular question to be submitted to the jury. (Brown Paint Co. v. Reinhardt, 210 N. Y. 162.)

Present: Cropsey, Lazansky and MacCrate, JJ.  