Eno v. . Klein

The judgment of the Appellate Division reversing on the law and the facts the judgment of the trial court and dismissing the complaint is modified by granting a new trial. No motion having been made at the close of the case by the defendant for a dismissal of the complaint or for a direction of a verdict, it constituted in this case a concession or admission upon his part that there was evidence which justified a submission of the case to the jury.

The Appellate Division, therefore, had no power to dismiss the complaint. (Civil Practice Act, sec. 584; Murtha v. Ridley, 232 N. Y. 488.)

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