
    (55 Misc. Rep. 201)
    BROWN et al. v. JOY S. S. CO.
    (Supreme Court, Appellate Term.
    June 27, 1907.)
    Teiab—Request to Go to Juey—When may be Made.
    In the trial of an action both parties moved to direct a verdict, whereupon the court said: “I will direct a verdict for plaintiffs.” Immediately thereafter, and before the verdict was recorded, defendant asked leave to go to the jury, which was denied, and thereupon, by diréction of the court, the jury found for plaintiffs. Held, that defendant’s request did not come too late.
    , Seabury, J., dissenting.
    Appeal from City Court of New York, Trial Term.
    Action by Louis Brown and another against the Joy Steamship Company. Erom a judgment for plaintiffs, defendant appeals. Reversed, and new trial granted.
    
      Argued before GILDERSLEEVE, P. I., "and SEABURY and PLATZEK, JJ. ■ -
    Frederick C. Tanner (Edward Chase Crowley, of counsel), for appellant.
    Gainsburg & Solomon (I. Gainsburg, of counsel), for respondent.
   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 yerdict 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 plaintiff.

The court misconstrued the .law as to its 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. Second Nat. Bk. v. Weston, 161 N. Y. 520, 55 N. E. 1080, 76 Am. St Rep. 283; Solomon, v. Levine (Sup.) 104 N. Y. Supp. 443. 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 contributoty 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.

SEABURY, J. (dissenting).

When the trial justice said, “I will direct a verdict for the plaintiff,” I think that 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 (Sup.) 104 N. Y. Supp. 443.

I think the' judgment appealed from should be affirmed. , •  