
    Oscar Lagerquist, Resp’t, v. United States Industrial Insurance Company, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Triai—Direction of verdict.
    Where both parties unite in requesting the court to direct a verdict, they are both deemed to have agreed that the facts may be determined by it, and its decision will be sustained if there is any evidence to uphold it.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.
    
      Johnston & Johnston, for app’lt; J. Edward Swanstrom, for resp’t.
   Dykman, J.

This is an appeal from a -judgment in favor of the plaintiff for the sum of $254.52, which was entered on the verdict of a jury directed by the court after a trial before a jury, and also from an order denying a motion for a new trial on the minutes of the court. At the close of the testimony on both sides the counsel for the defendant requested the trial judge to direct a verdict for the defendant, on the ground that there was a breach of the warranty contained in the policy, and also false representations which voided the policy. The trial judge then asked the plaintiff if he requested the direction of a verdict, and was answered in the affirmative. Thereupon the trial judge directed a verdict for the plaintiff. Then the counsel for the defendant requested permission to go to the jury, and the trial judge then stated that he denied the motion of the defendant and granted the motion of the plaintiff, and directed a verdict for him. There was an exception to such direction.

The record presents no error. When the counsel for both parties unite in requesting the court to direct a verdict, they are both deemed to have agreed that the facts might be determined by the trial judge, and this decision will be sustained if there/be any evidence to uphold it. Dillon v. Cockcroft, 90 N. Y. 649; Mayer v. Dean, 115 N. Y. 556; 26 St. Rep. 375. In this case there was ample evidence to support the decision of the trial judge, and this order, denying the motion for a new trial on the minutes of the court, must be affirmed, with costs.

Pratt, J., concurs; Brown, P. J. dissents.  