
    Harry Solomon, Appellant, v. Eliocum Levine, Respondent.
    (Supreme Court, Appellate Term,
    May, 1907.)
    Taking case from jury and nonsuit — Waiver of right to go to jury by request for direction of verdict; Necessity, form and sufficiency of request to submit issues to jury — Request to submit entire case.
    After both parties-had’moved for the direction of a verdict and a verdict for defendant had been directed and recorded, plaintiff’s request to go to the jury came too late.
    Where plaintiff’s request was to go to the jury on the entire case it was not a matter of right even though the request had been made in time.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, thirteenth district, borough of Manhattan.
    David Bernstein, for appellant.
    Phillips & Samuels, for respondent.
   Brady, J.

' The record shows the following situation: At the close of the testimony the plaintiff’s attorney, moved the court to direct a verdict for plaintiff. The attorney for defendant then moved for a similar direction in favor of defendant. The court said: “Both sides having moved for a direction, the court directs the jury to find a.verdict in favor of defendant,” and plaintiff’s attorney" thereupon excepted. The court directed the jury so to find and it was so recorded. Plaintiff’s attorney then said: “I ask your Honor for leave to send the case to the jury on the entire case and on the facts and on the statements, on the transactions that took place between the plaintiff and the defendant, alleged to have taken place on the 8th day of February.” The court then said: “ It is too late now, a motion having been made for a direction of the verdict. Gentlemen of the jury by direction of the court you find a verdict in favor of the defendant.” Plaintiff’s attorney noted an exception.

Both parties moved to direct" a verdict and the record shows that the court granted defendant’s motion, to which plaintiff excepted, and that the court directed the jury so to find and that it was so recorded. The plaintiff’s request to go to the jury was then too late. While, until final action had been taken by the actual direction of a verdict, the plaintiff’s counsel could change his mind and ask to go to the jury (Second Nat. Bank v. Weston, 161 N. Y. 528; Seddon v. Tagliabue, 50 Misc. Rep. 156), yet in this case the final action as shown by the stenographer’s minutes had been taken and the plaintiff was too late. Besides, the request of plaintiff was to go to the jury on the entire case, and this is not a matter of right even had it been made in time. Bowers v. Ocean A. & G. Corp., 110 App. Div. 691. The subsequent declaration of the justice that the plaintiff was too late and the court’s repetition of the direction do not alter the case. The judgment was justified by the evidence.

Gildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs to respondent.  