
    (112 App. Div. 891)
    HERRMANN v. HERRMANN.
    (Supreme Court, Appellate Division, Second Department.
    March 9, 1906.)
    1. Appear — Verdict—Vacation—Review—Record—Evidence.
    Where, on appeal from an order setting aside a verdict in favor of plaintiff, and directing a decree in favor of defendant, the evidence is not returned, there can be no review, on the merits.
    
      2. Trial — Verdict—Vacation.
    In a suit to establish a common-law marriage, the trial court had jurisdiction to set aside a verdict in favor of plaintiff, and hear and determine the ease on the merits.
    Appeal from Special Term, Westchester County.
    Action by Carletta Herrmann against George Herrmann to establish a common-law marriage. From an order setting aside a verdict in favor of plaintiff, and directing the entry of a decree in favor of defendant (98 N. Y. S. 654), plaintiff appeals'.
    Affirmed.
    Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, and HOOPER, JJ.
    Gustavus A. Rogers, for appellant.
    Francis B. Mullin (William W. Goodrich, of counsel), for respondent.
   PER CURIAM.

As the evidencé is not returned, there can be no review upon the merits. The trial court had jurisdiction to set aside the verdict and to hear and determine the case upon the merits.

The judgment is affirmed, with costs.  