Opinion
November, 1908.
Shiland, Shoemaker Hedges (Arleigh Pelham, of counsel), for appellants.
Mark Alter, for respondent.
At the trial of this action, to recover commissions as real estate brokers, and at the close of the case, both sides moved for the direction of a verdict; and the trial justice directed a verdict in favor of the defendant. Thereupon, the plaintiffs excepted, and requested to go to the jury upon certain questions of fact. The motion was denied as too late, the court saying, "You should have made that before the court directed its verdict," and exception was taken. While the motions for direction were not specifically passed upon, the direction by the court was, in effect, a denial of one and a granting of the other; and the immediate request of the plaintiffs was apparently timely; and, although the trial justice was clothed with the functions of a jury, the plaintiffs were not precluded, if there was evidence to submit, as there was herein, from requesting to go to the jury upon facts that were disputed (Shultes v. Sickles, 147 N.Y. 704); because the record does not disclose that the verdict had been both directed and entered at the time of the request for submission. "Where, however," this court has said, "upon the trial of an action both parties asked the court to direct a verdict and, after the verdict has been directed and entered by the clerk, the defeated party excepts to the direction, he cannot subsequently insist upon his right to go to the jury upon a disputed question of fact." Zajic v. Elian, 50 Misc. 289. The judgment and order appealed from must, therefore, be reversed and a new trial granted.
GILDERSLEEVE, J., concurs; SEABURY, J., dissents.
Judgment and order reversed and new trial granted, with costs to appellants to abide event.