Opinion
March 9, 1959
Twohy Kelleher for plaintiffs.
Galli, Terhune, Gibbons Mulvehill ( Oscar A. Thompson of counsel), for Fred Seaman, defendant.
Evans, Orr, Walsh, Gourlay Pacelli ( Walter G. Evans of counsel), for Anna Johnson, defendant.
The communication addressed to the court on March 5, 1959 by the attorney for the defendant Seaman is deemed a motion to reargue. The said defendant calls attention to an erroneous quote by the court of the wording of a motion made by him to set the verdict aside. He insists that the motion to set aside was not directed to "the weight of the evidence" and that it was urged as incidental merely to the motions made prior to the verdict for a dismissal of the complaint and for a directed verdict.
The court may have misconceived the nature of the motion. Whether there be any need to move to set aside a verdict when there are pending and undecided motions for a dismissal and for a directed verdict is a moot question since the granting of either of the latter motions disposes of the former. At any rate the motion to set aside was mistakenly thought to be addressed to the weight of the evidence rather than as ancillary to the earlier motions so that the misquote will be eliminated from the court's opinion.
I must, however, adhere to my original decision for I am convinced that the complaint against this defendant cannot be dismissed nor may the verdict stand for the reasons set out in my said opinion. Indeed, I regard a new trial as essential despite the desire to avoid it for the purpose of expediting an appeal on the present record. Incidentally, there is no impediment to an immediate appeal from an order to be entered requiring a new trial (Civ. Prac. Act, §§ 557, 609; Goldstein v. Goldstein, 212 App. Div.. 470; Anderson v. Carter, 165 N.Y. 624, affg. 24 App. Div. 462; Keremelis v. Albany Pearl Taxi, 274 App. Div. 360).
The opinion dated February 27, 1959 ( 15 Misc.2d 881, 882) is amended in the following respects: The words "as against the weight of the evidence" at the end of the first sentence of the second paragraph are deleted therefrom. The final sentence of the last paragraph is deleted and the following substituted therefor: "The verdict is set aside on the court's own motion and as to the defendant Seaman a new trial ordered."