
    Philadelphia Griffith, Resp’t, v. Staten Island Rapid-Transit Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department.
    
    
      Filed July 26, 1895.)
    
    Appeal—Motion to dismiss.
    The failure of defendant, at the close of plaintiff’s case, to move for a dismissal or for direction of a verdict, is a concession that there is then evidence sufficient to carry the case to the jury.
    Appeal from a judgment entered on a verdict in favor of plnintiff, and from an order denying a motion for a new trial.
    Tracy, Boardman & Platt, for app’lt; Grout, DeFere & Mayer, for resp’t.
   PRATT, J.

—The only points made by appellant relate to the sufficiency of the evidence to prove freedom from negligence by plaintiff, and the fact of negligence by itself. These points arise upon appellant’s motion to dismiss the complaint when plaintiff rested, and the motion to set aside the verdict and for a new trial. There was no motion to dismiss at the close of the case, nor was there any request for a direction. If plaintiff’s evidence was insufficient on the question of her own or defendant’s negligence, the point is not available, provided the case on all the evidence was for the jury. It seems to have been regarded by defendant. Its failure .to move to dismiss, or for direction of a verdict, has been held to be a concession that there was then evidence sufficient to carry the case to the jury. Barrett v. Railroad Co., 45 N. Y. 632. This rule seems to make out a waiver of the exception for denial of the motion to dismiss; that is to say, it is a concession that the case was so changed since that motion was made that the case had come to be one for the jury. Id. See, also, Sternwald v. Siegel, 27 N. Y. Supp. 375; Eckensberger v. Amend, 7 Misc. Rep. 452; 57 St. Rep. 569; Id., 10 Misc. Rep. 145; 62 St. Rep. 479. With this concession before us, we cannot review the denial of the motion to set aside the verdict. Even if it were otherwise, we think that, although the case was a close one on the questions of negligence, it was properly, as it certainly was fairly and carefully, submitted to the jury by the learned trial judge.

The order of judgment is affirmed, with costs.  