
    FRAHM v. NEW YORK & Q. C. RY. CO.
    (Supreme Court, Appellate Division, Second Department.
    April 23, 1909.)
    -Appeal and Error (§ 1178)—Disposition of Cause—Reversal—New Trial.
    Where there were grounds which would have justified a new trial, and . ;the court set aside the verdict, but dismissed the complaint on its merits, and defendant on appeal admitted that the dismissal was not justified, and consented that the judgment be modified to direct a new trial, the case should be sent back for a new trial, and the judgment not reversed, with a reinstatement of the verdict.
    ■ - [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. § 1178.*]
    
      Appeal from Municipal Court, Borough of Queens, First District.
    Action by William J. Frahm against the New York & Queens County Railway Company. Judgment of dismissal, and plaintiff appeals.
    Modified and affirmed.
    Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.
    Eugene N. L. Young (James R. McNally and Joseph A.'Hart, on the brief), for appellant.
    Anthony J. Ernest, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1807 to date, & Rep’r Indexes
    
   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, hut 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, 110 N. Y. Supp. 749, and Powers v. Miller, 123 App. Div. 396, 107 N. Y. Supp. 960. 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 be modified, we are of the opinion that we ought not to assume to dispose of the controversy, but should send it back foa new trial.

The order dismissing the complaint, and the 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, should be affirmed, without costs. All concur.  