Tanner v. Tennenbaum

Sherman, J.

This action was tried at Trial Term under the customary stipulation waiving a jury and providing that a verdict be directed by the trial justice with the same force and effect as though a jury were present.

The action is in negligence. When plaintiffs rested, defendants moved to dismiss the complaint. This motion was granted. The court mentioned that the plaintiffs had not sustained the burden of proof upon the issue of contributory negligence. Upon the argument in this court, appellants’ counsel stated his willingness that the appeal be disposed of as a question of fact. The judgment entered upon the dismissal is in effect the same as if entered upon a verdict directed in favor of defendants (Civ. Prac. Act, § 482), for it is a final determination upon the merits.

Treating the dismissal of the complaint as a direction of a verdict, we hold that the proof supports the conclusion of the trier of the facts. The evidence upon the question of contributory negligence presented a question of fact. The proof of defendants’ negligence was scanty and inconclusive.

The judgment appealed from should be affirmed, with costs.

Finch, P. J., Merrell, Martin and Townley, JJ., concur.

Judgment affirmed, with costs.