
    William J. Frahm, Appellant, v. New York and Queens County Railroad Company, Respondent.
    
      Practice—motion for new trial —failure to request dismissal of complaint.
    
    Appeal by the plaintiff, William J. Frahm, from a judgment of the Municipal Court of the city of New York, borough of Queens, rendered on the 6th day of June, 1908, dismissing the plaintiff’s complaint upon the merits.
   Woodward, J.:

The plaintiff had a verdict for §438.25 damages sustained by his horses, wagon and harnesses in an accident upon the defendant’s surface railroad on Jackson avenue, Long Island City, and there does not appear to be any doubt that the case presented evidence which required its submission to the jury, the learned trial court denying motions to dismiss both at the close of plaintiff’s evidence and upon the defendant resting. Upon the coming in of the verdict, counsel for defendant moved to set it aside and for a new trial, - but did not include in the motion any request to dismiss the complaint. The learned court reserved decision upon this motion,; but subsequently granted the same, including in the order a dismissal of the complaint. Upon this appeal counsel for the defendant admits that this part of the order is not justified, and consents to the modification of the order of dismissal so as to direct that a new trial be had, with costs to abide the event, under the authority of Smith v. Stork (126 App. Div. 355) and Powers v. Miller (123 id. 396). The plaintiff urges, however, that he is entitled to a complete reversal of the judgment and a reinstatement of the verdict. An examination of the case convinces us that there were grounds which justified the learned court in granting the motion tO' set aside the verdict and to grant.a new trial, the charge of the court in reference to the damages, the evidence being somewhat uncertain, being open to objections, and as the respondent concedes that the order should he modified, we are of the opinion that we ought not to assume to dispose of the controversy, hut should send it back for á new trial. Jenks, Gaynor, Burr and Rich,. Jj., concurred. Order of the Municipal Court dismissing the complaint and judgment entered thereon, should be modified so as to direct a new trial in the district where the action was brought; and as so modified affirmed, without costs.  