
    Louis Brown and Morris Taub, Respondents, v. The Joy Steamship Company, Appellant.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Taking case from jury and nonsuit — Effect of request to direct verdict— Eight to go to jury after request is denied; Bequest hy both parties.
    Where both sides moved for the direction of a verdict and, after the court, had said it would direct a verdict for plaintiffs but before a verdict was directed, the defendant asked to go to the jury upon a question of fact, it was not imperative upon the court to decide the question of fact; and its refusal to- submit the question to the jury upon that ground is error for which a judgment for the plaintiffs upon a verdict directed by the court should be reversed.
    Seabury, J., dissents.
    
      Appeal "by the defendant from a judgment of the City Court of the city of New York, entered on a verdict directed in favor of plaintiffs and from an order denying a motion for a new trial.
    Frederick C. Tanner (Edward Chase Crowley, with him on the brief), for appellant.
    Gainsburg & Solomon (I. Gainsburg, of counsel), for respondents
   Per Curiam.

The action is for damages for defendant’s failure to deliver a case of goods within a reasonable time after receipt thereof. One of the defenses is that the box containing the goods was negligently marked by plaintiffs, having three addresses on different sides of the box, and that this negligence of the plaintiffs contributed to defendant’s delay in delivering the goods. Both sides asked for the direction of a verdict. The court then said: I will direct a verdict for plaintiffs.” Immediately thereafter, and before the verdict was recorded,, the defendant’s counsel said: Then I ask for leave to go to the jury on this question.” The court replied: “ Pardon me, you have moved for a direction, and both sides having moved for a direction makes it imperative on the court to decide it.” Defendant’s counsel: “ I except to that, your Honor.” Then, by direction of the court, the jury found a verdict for the plaintiffs. The court misconstrued the law as to "s being imperative upon the court to decide the question of fact, under the circumstances above narrated. Until final action had been taken by the actual direction of a verdict, the defendant was at liberty to change his mind and ask to go to the jury. Solomon v. Levine, 54 Misc. Rep. 270; Second Nat. Bank v. Weston, 161 N. Y. 520. While it may well be that, had the issue of plaintiffs’ negligence, contributing to the delay, been submitted to the jury, they would have regarded the three addresses marked on the box, under the circumstances'presented, as entirely insufficient to excuse the delay of the defendant in offering the box to the consignees; still, there was a question of contributory negligence presented, which, under well settled rules, should have been submitted to the jury. There are other questions raised upon this appeal which it is unnecessary to discuss here, as the error above indicated calls for a reversal.

Judgment and order reversed and new trial granted, with costs to appellant to abide the event. .

Gildersleeve and Platzek, JJ., concur.

Seabury, J.

(dissenting). When the trial justice said: “ I will direct a verdict for the plaintiffs,” I think it was too late to withdraw the motion that had been made. It was doubtless discretionary with the court to permit the withdrawal of the motion, but his failure to permit such withdrawal was not, in my .judgment, an error that calls for reversal. Solomon v. Levine, 54 Misc. Rep. 270.

I think the judgment appealed from should be affirmed.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  