The plaintiff had a verdict for $438.25 damages sustained by his horses, wagon, and harnesses in an accident upon the defendant’s surface railroad on Jackson avenue, Long Island City, and there does not appear to be any doubt that the case presented evidence which required its submission to the jury; the learned trial court denying motions to dismiss both at the close of plaintiff’s evidence and upon the defendant resting. Upon the coming in of the verdict, counsel for defendant moved to set it aside and for a new trial, hut did not include in the motion any request to dismiss the complaint. The learned court reserved decision upon this motion, but subsequently granted the same, including in the order a dismissal of the complaint.
Upon this appeal counsel for the defendant admits that this part of the order is not justified, and consents to the modification of the order of dismissal, so as to direct that a new trial be had, with costs to abide the event, under the authority of Smith v. Stork, 126 App. Div. 355, 110 N. Y. Supp. 749, and Powers v. Miller, 123 App. Div. 396, 107 N. Y. Supp. 960. The plaintiff urges, however, that he is entitled to a complete reversal of the judgment and a reinstatement of the verdict. An examination of the case convinces us that there were grounds which justified the learned court in granting the motion to set aside the verdict and to grant a-new trial, the charge of the court in reference to the damages, the evidence being somewhat uncertain, being open to objections; and, as the respondent concedes that the order should be modified, we are of the opinion that we ought not to assume to dispose of the controversy, but should send it back foa new trial.
The order dismissing the complaint, and the judgment entered thereon, should be modified, so as to direct a new trial in the district where the action was brought, and, as so modified, should be affirmed, without costs. All concur.