
    Edward Blewett and Others, Respondents, v. Colgate Hoyt Appellant, Impleaded with Leigh Hunt, Defendant.
    First Department,
    January 11, 1907.
    Practice — when case on appeal should contain grounds of motion to dismiss the complaint.
    When at trial the plaintiff moves.forthe direction of a verdict and the defendant moves for the dismissal of the complaint, and in the alternative for á direction of verdict for plaintiff for nominal damages and the court directs judgment-for the plaintiff, the case on appeal should state the grounds upon which the defendant- moved to dismiss the complaint and for the direction of a verdict, so that there can he no question that he waived any position which he was entitled to take. =
    Appeal by the defendant, Colgate Hoyt, from an order of the-Supreme Court, made at the Hew York Special- Term and entered .in the office of the clerk of the county of HeW York on the 7th day of December, 1906, denying the said defendant’s motion to resettle the case on appeal herein. - .
    
      William D. Guthrie, for the appellant.
    
      George F. Harriman, for the respondents.
   Ingraham, J.:

The question presented on this appeal is whether the case on appeal should contain the grounds upon which .counsel for the defendant Hoyt moved to dismiss the complaint. It seems that after the plaintiff rested, counsel for the defendant Hoyt made a motion to dismiss the complaint, stating at large -Seven grounds upon which- that motion was based. From the stenographer’s minutes it appears that he commenced his argument and continued until recess, when the argument was suspended; that after recess counsel for the defendant Hoyt said: “I desire to state that the defendants rest upon the plaintiffs’’case.” The plaintiffs then made a motion, to strike out portions of the testimony, and then made a motion to; direct a verdict for the plaintiffs.' The court then said : How the question is on- the motion of the plaintiffs and the defendant Hunt and for the direction of a verdict against the defendant Hoyt. Tour motion, Mr. Guthrie, is still to dismiss the-complaint,” to'which Mr. Guthrie replied.: “My motion is first to dismiss the complaint, in the alternative, a ruling that the plaintiffs in no event are entitled to recover more than nominal damages.” The court then, after stating the several motions, said : “ I will hear Mr. Guthrie, I think, since he had the floor and has started. Does not this take the question away from the jury, gentlemen ? I think it does, and we have quite an- important question here.” After further discussion the court held that these several motions made a question of law for the court, when the jury seems to have been discharged without objection, and counsel for the defendant continued this motion to dismiss the complaint.

It appears that a long discussion followed, counsel for all of the parties being heard. The court subsequently denied the defendant’s motions to dismiss the complaint or to direct a verdict for nominal damages, and granted the motion of the plaintiffs for . judgment for the full amount claimed, and subsequently filed-a decision in favor of the plaintiffs upon which judgment was entered. The case on appeal as settled, merely stated that the plaintiffs moved for the direction of á verdict for the plaintiffs, and counsel for the defendant Hunt joined in that motion, and the defendant Hoyt moved for the direction of a verdict in his favor. There was no statement of the grounds upon which the defendant Hoyt made his motion and Which was considered by the trial .court. I think this motion should have been granted so that the case should contain a statement of the motion made by the defendant Hoyt and the grounds upon which it was made. On an appeal in a casé of ■. this kind it is often important'to have the grounds upon which a motion- for the dismissal of the complaint or for the direction of a verdict was made, so that there can be no question of a waiver of any position which the defendant was entitled to take. The statement in the affidavits and the stenographer’s"minutes of what happened upon the trial shows that the defendant Hoyt’s motion was upon thé grounds stated -by him on his motion to dismiss at the close of the plaintiffs’ case. It is true that after the motion was made the situation was somewhat changed by the defendant resting ; but after the defendant had rested and the plaintiffs had made their motion for the direction of a verdict, the defendant Hoyt continued his argument of the motion that he had made, based upon the same grounds that he had stated when the motion was to dismiss the complaint at the end of the plaintiff’s case. It is only just to the defendant Hoyt that.this situation should distinctly appear. The motion to resettle the case was not denied upon a dispute as to what actually happened upon the trial, but from the memorandum of-the learned trial judge it would seem to have been based upon the fact -that the case in its -present condition was settled by' consent. Ho affidavit was submitted by the plaintiffs in opposition to this motion and no question of fact is presented.

The order appealed from, should be reversed and the motion to-resettle the case granted so that the grounds of the defendant Hoyt’s motion to dismiss the complaint should be inserted in the case, with ten dollars costs and disbursements.

Patterson, Laughlin, Clarice and Scott, JJ.,- concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted as stated in opinion. Settle order on notice.  