
    (89 Hun, 141.)
    GRIFFITH v. STATEN ISLAND R. T. R. CO.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Insufficiency of Evidence—Right to Dismissal—Waiver
    In an action against a railroad for personal injuries, defendant, by failing at the close of the case to move for a dismissal, or for the direction of a verdict in its favor, concedes that there is sufficient evidence to warrant the submission of the case to the jury, though it moved for a dismissal at the close of plaintiff’s case.
    Appeal from circuit court, Kings county.
    Action by Philadelphia Griffith against the Staten Island Rapid-Transit Railroad Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $500 and costs, and from an order denying a motion for a new trial, defendant appeals.
    Affirmed.
    Argued before DYKMAN and PRATT, JJ.
    Tracy, Boardman & Platt, for appellant.
    Grout, De Fere & Mayer, for respondent.
   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 ari^e 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 (Com. Pl.) 27 N. Y. Supp. 375; Eckensberger v. Amend, 7 Misc. Rep. 452, 27 N. Y. Supp. 941; Id., 10 Misc. Rep. 145, 30 N. Y. Supp. 915. 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.  