Partridge v. Norton 16 N.Y. Sup. Ct. 582

ANSEL N. PARTRIDGE, Plaintiff, v. CHRISTOPHER F. NORTON, Defendant.

Direction of verdict, subject to opinion of General Term — not proper unless there be no dispute as to the facts.

Applioation for judgment on a verdict in favor of the plaintiff, directed at the Circuit, subject to the opinion of the General Term.

The court at General Term say: “ The defendant objected to certain evidence offered by the plaintiff. The objection was overruled, the defendant excepted, and .the evidence was received. At the close of the trial, the court directed a verdict for the plaintiff, subject to the opinion of the court at General Term. This was a mistrial. ‘ Hpon a verdict subject to the opinion of the court, the question is never whether a new trial shall be granted, but which party, upon a conceded state of facts, shall have final judgment.’ (Qóbh v. Cornish, 16 N. Y., 602; Purchase v. Matteson, 25 id., 211.) There was- no waiver of the exceptions, or consent to the directing of a verdict, as in Byrnes v. Cohoes (12 S. C. N. Y., 602).

There must be a new trial, costs to abide the event.”

Magone <& Holbroolc, for. the plaintiff. WilUam E. Smith, for the defendant.