Opinion
January 22, 1970
Appeal from an order of the Supreme Court, entered February 2, 1967 in Columbia County, which denied defendants' motions to dismiss the complaint. This action was commenced to recover damages for injuries sustained by the respondent Catherine Richardson, and for loss of services and medical expenses incurred by her husband, Frank Richardson, when she allegedly slipped and fell while descending a stairway in appellants' home. After the jury reported that it was unable to reach a verdict, a mistrial was granted. The instant order is not appealable. In view of the jury disagreement and mistrial, denials of the appellants' oral motions to dismiss, one made at the close of respondents' case, and renewed both at the close of the entire case and after the jury failed to reach a verdict, are part of the rulings made during the course of trial and not appealable. ( Covell v. H.R.H. Constr. Corp., 17 N.Y.2d 709, affg. 24 A.D.2d 566; Tannenbaum v. Hoar, 26 A.D.2d 980.) The result might be otherwise if the motion were made upon notice. (7 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5701.19.) Appeal dismissed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur in memorandum by Greenblott, J.