Myers v. Daley

236 A.D. 879

Opinion

Per Curiam.

We affirm this judgment on the sole ground that a fair question of fact in our opinion was presented by the evidence. While under section 459 of the Civil Practice Act provision is made for reserving a motion for a nonsuit or for a directed verdict only when special questions are submitted to the jury, still in this case when the trial court announced that he would reserve the motion for a nonsuit there was no objection from counsel and both thereafter presented their arguments to the jury. Under these circumstances counsel must be held to have acquiesced in the practice. (Bail v. N. Y., N. H. & H. R. R. Co., 201 N. Y. .) The trial court was entitled to rule on defendant’s motion after the jury had returned their general verdict. (Ziegler v. Int. Ry. Co., 232 App. Div. 43.) In our opinion, however, as above stated, the trial court erred as matter of law in granting the defendant’s motion for a nonsuit. All concur Judgment affirmed, with costs.