
    (69 Hun, 539.)
    BANKER v. KNIBLOE.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Trial—Directing Verdict—Waiver oe Jury Trial.
    Where both parties ask the court to direct a verdict, and neither asks to go to the jury on any question of fact, they both waive the right to go to the jury on any question, and it is error for the court to grant a new trial on the ground that there was a question of fact in the case which should have been submitted to the jury.
    Appeal from special term, Livingston county.
    Action by John W. Banker against William E. Knibloe on a promissory note. From an order granting plaintiff’s motion for a new trial on the minutes, after a verdict for defendant by direction of the court at circuit,' defendant appeals.
    Beversed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    L. O. Beed, for appellant.
    G. W. Daggett, for respondent;
   DWIGHT, P. J.

At the close of the evidence both parties asked for the direction of a verdict by the court, and neither party asked to go to the jury upon any question in the case. The court thereupon directed a verdict for the defendant, but stayed the entry of judgment, and gave time to the plaintiff to move for a new trial. That motion was afterwards heard at a special term held by the same judge, and the order for a new trial was granted solely upon the ground, as appears from the opinion of the judge, that there was a question of fact in the case which should have been submitted to the jury. The situation is peculiar. By the course taken by the parties on the trial both of them waived the right to go to the jury upon any question in the case, and submitted all questions of fact as well as of law to the decision of the court. Bank of Attica v. Pettier & Stymus Manuf'g Co., (Sup.) 1 N. Y. Supp. 483; Dillon v. Cockroft, 90 N. Y. 649; Provost v. McEncroe, 102 N. Y. 650, 5 N. E. Rep. 795; Reilly v. Lee, (Sup.) 16 N. Y. Supp. 313. It is plain, therefore, that no error was committed in withholding any particular question of fact from the jury, since all questions of fact were withdrawn from the jury by the parties themselves. In such a case, the only questions reviewable on a motion for a new' trial are those raised by exceptions taken on the trial, and the question whether the decision of any question of fact, necessarily involved in the direction of a verdict, was without evidence to support it. Gregory v. Mayor, etc., 113 N. Y. 416, 21 N. E. Rep. 119; Kirtz v. Peck, 113 N. Y. 222, 21 N. E. Rep. 130; Provost v. McEncroe, supra. Manifestly, in such a case, it is not open to either party on appeal, or on a motion for a new trial, to complain that there was any question of fact in the case which should have been submitted to the jury. In this case the only question of fact which was really litigated on the trial, or which is suggested by the plaintiff as an open question on this motion, is the question whether the plaintiff was a holder in good faith and for value of the promissory note in suit, and that is the question which the court at special term held should have been submitted to the jury. For the reasons stated it is evident that the motion for a new trial should not have been granted on that ground, and we find no other ground in the case which justifies the granting of the motion. The order must therefore be reversed, with costs, and judgment directed for the defendant on the verdict. So ordered.  