
    William W. Peniston, Appellant, v. John M. Coleman and James L. Dowsey, Respondents.
    Second Department,
    December 30, 1910.
    Trial — motion for- direction of vei-dict—right to have, questions submitted to jury. ' ■
    Where both parties move for the direction of .a verdict after .the .evidence ,is in, the.court, when holding with the defendant, shquld not dismiss the complaint on the merits, hut should direct a verdict for the defendant. •
    A party by requesting a direction of a verdict is npt. precluded from requesting a submission of a question of fact to the jury! .
    A plajntiff on moving for the direction of a verdict is entitled to a ruling thereon, and a'ri. opportunity- to request a- submission-' of questions to 'the jury, and, hence, it is error for- the court, instead'of passing upon the plaintiff’s motion, to grant a similar motion of. the defendant and to' refuse plaintiff's motion to submit questions to the jury upon the ground that the motion is toó late. .
    Appeal by the plaintiff, William W.-Peniston, from a judgment of the Municipal. Court of the city of Mew York, .borough of Brooklyn, in fav.or. of the defendants, rendered on the 5th day of • May,-' 1910,' and also from an order denying the plaintiff’s motion for a new' trial. - ' V . . •'
    
      Walter L. Bunnell, for, the appellant.
    . Bowen I£. Ginn,- submits for the respondent's.
   Jeñks, J.':

This action is upon a promissory nóte. The defendants asked and obtained the. affirmative without objection. They read.the note in ' evidence, and then offered téstimony in their. defense. When- the defendants rested,, plaintiff moved for judgment — for a' direction of a verdict in favor óf plaintiff. The' court, then -asked: ■ “ Are there.any other motions ? ”' Thereupon the defendants moved that' the .court direct- a verdict for them on the evidence. The court then said: AI direct, a verdict for the. defendant.” ■ Plaintiff then- '' asked to go-to th'e jury on the .question of fact. The court said:- - “ You are too 1 até, now.” Plaintiff then, asked permission to take - the witness stand. ■ The court said: “Y ou are too late, now. You • sho.uld have withdrawn your motion-.” Plaintiff, then asked if he might withdraw the motion, and the court replied: “ Not now, the case is disposed of,” and, addressing, the jury, “You may go home now, gentlemen.” Plaintiff’s counsel then excepted, and asked the court for permission to go to the-jury on the question of fact. The court replied : “ The case is disposed-of, it-is not before me now.” The return shows: “ Case tried. Counsel for plaintiff- asks Court for direction' of verdict. Counsel for defendant asks Court for direction of verdict. ' Court directs verdict in favor of defendant. Judgment is rendered for the defendant, dismissing the complaint on- the merits, with costs.” The proper practice in such case is a direction of a verdict for the defendant.' (Niagara Fire Ins. Co. v. Campbell Stores, 101 App. Div. 400; affd., 184 N. Y. 582; Stumpf v. Hallahan, 101 App. Div. 383; affd., 185 N. Y. 550.) .A party who requests a direction of a verdict is not thereby precluded from a requést for submission of a question of' fact to the jury. (Shultes v. Sickles, 147 N. Y. 704; Clark v. Clark, 91 Hun, 295; Switzer v. Norton, App. Div. 173.) I think that' the plaintiff was entitled to a ruling upon his motion, whereupon he might have had an opportunity to request a submission to 'the jury. (Carr v. Sullivan, 68 Hun, 246.) As it was, the court entertained his. motion.without disposition of it, and thereupon in a-breath granted the -motion of the defendants. .

Without any expression as to the merits, I advise that the judgment and- order be reversed, and that a new trial be ordered, costs to abide the event.

Hieschberg, P. J., Woodward, Burr and Bros, JJ.,. concurred.

'Judgment and order of the Municipal Court reversed and new trial ordered, Costs to abide the event.  