MacIvor v. Schwartzman

237 A.D. 825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1932
• Status: Published

Opinion

Order denying plaintiff’s motion for judgment and an extra allowance reversed on the law and the facts, without costs, motion granted, and judgment directed for plaintiff for the relief demanded in the complaint. The anomalous situation with respect to practice herein was due in part to the suggestion, in effect, of the trial court that the motion for judgment on behalf of the plaintiff would have to be made at a subsequent time. The verdict of the jury made of no practical moment any alleged issues of fact existing under the pleadings and proof, apart from the question thus submitted. The verdict was in substance and effect (even though not in form) a general verdict. (Tracy v. Dolan, 51 App. Div. 588.) The conduct of the parties in acquiescing in the submission of a single question of fact to the jury, there having been no motion made to submit any other questions, and the defendants having moved for a dismissal of the complaint and the plaintiff having moved for a direction of a verdict, indicates that the question submitted to the jury was decisive of the entire case, as indeed it was. Under such circumstances, following the verdict of the jury, judgment should have been directed and entered in favor of the plaintiff; and if there were any nominal questions of fact, apart from the real question of fact submitted to the jury for determination, they should have been determined by the trial justice and the entire matter then disposed of. The effect of the motion was to accomplish this very thing and it, therefore, should have been granted. This court will do that which should have been done at the close of the trial. The action is or has been made difficult within the meaning of section 1513 of the Civil Practice Act, and an extra allowance was proper. Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur. Settle order on notice.