
    James E. Clement, Resp’t, v. Congress Spring Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 3, 1895.)
    
    1. Tbiai,—Nonsuit.
    Failure to move for a nonsuit or to ask for a direction of a verdict precludes the defendant from moving to set 'aside the verdict as against the evidence.
    2. Witness— Ceedibility.
    The credibility of two witnesses, whose testimony is in direct conflict, is for the jury.
    Appeal from a judgment entered on a verdict in favor of the plaintiff.
    
      J. W. Grane {A. W. Shepherd, of counsel), for app’lt; J. W. Houghton, for resp’t.
   Per Curiam.

— The sole question in this case was whether plaintiff was employed by defendant for one year from March 1, 1892, as he claimed, or whether such employment ceased October 1, 1892, when-he was discharged by defendant. On this question there were only two witnesses sworn,—the plaintiff in his own behalf, and Mr. Sheehan on the .part of defendant. The testimony of the two witnesses w;as in direct conflict. Plaintiff swore positively that he was hired for one year from March 1, 1892, while Mr. Sheehan testified that his employment ceased on October 1st. We are unable to see how we could properly reverse the judgment on the facts.

The defendant made no motion for a nonsuit, or for a direction for a verdict, but acquiesced in the submission of the case to the •jury. In Pease v. Bell, 7 Hun, 454, Learned, J., says:

“The failure of a defendant to move for .a nonsuit, or to ask the court to direct a verdict for the defendant, is an admission that there is sufficient evidence to go to a j ury; and the defendant is thereby precluded from moving to set aside 'the verdict as against evidence.”

See, also, Barrett v. Railroad Co., 45 N. Y. 628-682.

Had the defendant, however, moved for a nonsuit at the close of the trial, or for a direction for a verdict, this was not one of those cases where the trial judge could properly have withdrawn the case from the jury. It is only where there is a decided preponderance of evidence in favor of one of the parties that a court is justified in directing a -verdict or granting a motion for nonsuit.

See opinion or Potter, J., in Morss v. Sherrill, 63 Barb. 21. Under the doctrine laid down in the case cited and many other "kindred cases, it was the province of the jury to pass upon the credibility of the two witnesses sworn in the case, there being no decided preponderance of evidence either way.

We have examined the exceptions to the rulings of the court below taken on the trial, and think none of them require a discussion or a reversal of the judgment.

Judgment affirmed, with costs.  