
    Kate Cunningham, Appellant, v. Nassau Electric Railroad Company, Respondent.
    
      Motion to set aside a verdict in the Municipal Court of New York city— the failure to give five days' notice thereof is a mere irregularity — it is not prejudiced by the prior entry of judgment.
    
    The fact that a party to an action pending in the Municipal Court of the city of New York made a motion to set aside a verdict in favor of his adversary immediately upon its return, instead of giving at' least five days’ notice of" the motion, as required by section 1387 of the Consolidation Act, as amended by . chapter 748 of the Laws of 1896 (made applicable to the Municipal Court of the city of New York by section 1369 of the Greater New York charter [Laws of 1897, chap. 378J), is a mere irregularity which is waived by the failure of his adversary to object thereto.
    The fact that the justice enters judgment upon the verdict prior to deciding the motion,.does not prejudice the moving party’s rights.
    
      Appeal by the plaintiff, Kate Cunningham, from an order of the Municipal Court of the city of New York, borough of Brooklyn, first district, bearing' _date the 18th dpy of March, 1899, and entered in the office of the clerk of said court, granting the defendant’s motion to set aside a verdict previously rendered in favor of the plaintiff, and for a new trial.
    Edward Whitney Hall, for the appellant.
    
      John M. Ward [William J. McArthur with him on the brief], for the respondent.
   Per Curiam:

The action is for personal injuries. The jury having rendered a' verdict for the plaintiff, the defendant, on the return of the verdict, moved,'under section 999 of the Code of Civil Procedure, to set aside the verdict as against the weight of the evidence. The motion having been adjourned from time to time, was argued, and a decis- • ion rendered in favor of the defendant, ■ granting the application,. Prior to this decision, however, the justice entered judgment on the verdict.

By section 1367 of chapter 410 of the Laws of 1882, as amended by chapter 748 of the Laws of 1896, made'applicable to the Municipal Court of the city of New York by section 1369 of the Greater New York charter (Laws of 1897, chap. 378), the justice was empowered to entertain the motion and' set aside the verdict of the ' jury. By the terms of that- act the moving party is required, within five days after the rendition of the verdict, to give not less than five nor more than eight days’, notice of his motion. The defendant’s . action was, therefore, irregular in bringing his motion on immediately upon the return of the verdict. This irregularity was waived by the failure of the plaintiff to take any objection to the defendant’s practice, and by proceeding to argue the motion on the merits.' Nor could the defendant be prejudiced by the justice entering judgment prior to the decision of the motion, as the defendant’s application was •one of right. On the merits we are of the opinion that the decision of the justice was correct, or at least not so plainly erroneous as to justify our interference. As the verdict was set aside for the error of the jury in deciding the question of fact, and not for any error ,of law, the application should have been granted only upon terms.

All concurred.

Order modified so as to require, as a condition of setting aside the verdict and granting a new trial, that the defendant within five days pay the plaintiff the sum of ten dollars. costs, and as modified, affirmed, without costs of this appeal to either party.  