
    Edward C. Boehm and Another, Appellants, v. Buffalo Savings Bank, Respondent.
    Fourth Department,
    May 11, 1927.
    Appeal — new trial — Special Term reversed judgment of City Court of Buffalo in favor of plaintiff upon facts but new trial was not granted • — Appellate Division cannot enter judgment here, since question of fact is involved — Special Term upon reversing facts should have granted new trial (Civ. Prac. Act, §§ 584, 630).
    This is an action instituted in the City Court of Buffalo to recover a sum claimed to have been deposited in the defendant bank. The judgment of the City Court of Buffalo was reversed upon the facts but a new trial was not granted although defendant demanded a new trial in its notice of appeal from the City Court judgment. Although the action has been twice tried, it is impossible for the Appellate Division to determine the controversy since an issue of fact is presented which must be determined by a jury. The Special Term should have granted a new trial upon reversing the judgment of the City Court on the facts (Civ. Prac. Act, §§ 584, 630).
    Appeal by the plaintiffs, Edward C. Boehm and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 16th day of February, 1926, reversing a judgment of the City Court of Buffalo in favor of the plaintiffs, and also from a judgment entered in said clerk’s office on the 2d day of March, 1926, pursuant to said order.
    
      Israel Rumizen, for the appellants.
    
      De Witt Clinton [Myron S. Short of counsel], for the respondent.
   Per Curiam.

The judgment of the Special Term appealed from, without granting a new trial, “ reversed on the facts ” a money judgment of the City Court of Buffalo entered upon the verdict of a jury in plaintiffs’ .favor. Defendant moved for. a dismissal of the complaint at the close of all the evidence. Defendant demanded a new trial in its notice of appeal from the City Court judgment.

The action is to recover a sum of money claimed to have been deposited for the plaintiffs in defendant savings bank. A former judgment in plaintiffs’ favor, affirmed at Special Term, was reversed by this court because the verdict was contrary to the weight of the evidence and a new trial was granted. (213 App. Div. 852.) Two trials of the action have been had and a final determination of the controversy is desirable. However, this being a jury case, and there having been a fair controversy of fact, the Special Term, upon reversing on the facts, should have granted a new trial. (Civ. Prac. Act, §§ 584, 630; Lamport v. Smedley, 213 N. Y. 82; Middleton v. Whitridge, Id. 499.)

Therefore, we modify the judgment appealed from so that it shall provide for a new trial in the City Court of Buffalo, with costs in this court on this appeal to appellants to abide the event, and all other costs in all courts to respondent to abide the event.

All concur. Present — Hubbs, P. J., Clark, Crouch, Taylor and Sawyer, JJ.

Judgment modified so as to provide for granting a new trial in the Buffalo City Court and as modified affirmed, with costs of this appeal in this court to the appellants to abide the event, and all other costs in all courts to the respondent to abide the event.  