#### Annie Powers, as Administratrix, etc., of Timothy Powers, Deceased, Appellant, *v.*David Miller, Respondent.

First Department,

January 10, 1908.

Trial — conflicting evidence — nonsuit on motion to set aside verdict.

When there is a clear conflict of evidence as to whether a master negligently directed certain act's which caused the death of an employee, the court on a motion to set aside a verdict on grounds set forth in section 999 of the Code of Civil Procedure, while empowered to grant that motion, has no authority to go further and dismiss the complaint on a reserved motion for a nonsuit.

It is never proper to dismiss a complaint where there is a substantial conflict of evidence upon the material question in issue, even though in.the opinion of the trial court the evidence is insufficient to justify a verdict.

Appeal by the plaintiff, Annie Powers, as. administratrix^ etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of July, 1907, setting aside the verdict of a jury in. favor of the plaintiff and dismissing the complaint, and also from an order entered in «said clerk’s office on the 29th day of June, 1907, upon which said judgment was entered.

*397
      *M. L. Malevinsky,*for the appellant.

*George F. Hickey,*for the respondent.

Lambert, J.:

The plaintiffs husband was employed as a chainman in the defendant’s stone yard on Second ■ avenue, city of blew York, on the 15th' day of September, 1902. Working with him was one Biedinger. It was the duty, of these men to fasten grabs upon a stone, which was being handled by means of a derrick operated by steam power, so that the stone might be sawed to the proper dimensions. The stone was upon skids upon a car. The man who was operating the derrick was located some distance above the plaintiff’s intestate and his fellow-laborer. One cut had been made upon the stone. It was desired to change its position for a second cut. The defendant was present. The chain or rope, with the grab hooks, was lowered to the stone, Biedinger attached his grabs, and plaintiff’s intestate was engaged in adjusting other grabs, when it is claimed that the defendant, intruding in a detail of the work, gave the signal to the derrick man to start the machinery, without giving the deceased proper time in which to do his work, with the result that the grabs placed by Biedinger operated to turn the stone over upon plaintiff’s intestate, causing his death. The defendant denied that he gave this order, but there was a clear conflict of evidence upon this point, and we are of the opinion that.a question was presented for the determination of the jury.

Another theory was advanced by the defendant, to the effect that both Biedinger and plaintiff’s intestate had attached their grabs, and that the stone was raised some four or five ipches from the car, when a piece of the stone chipped out under one of the grabs, causing the stone to fall, with the result as stated above. The learned trial court reserved a ruling upon a motion to dismiss the complaint until after the verdict. Then, upon a motion being made to set aside the verdict on the usual grounds,, the court called up the. motion to dismiss, and on defendant making “all the motions,” as counsel put it, the court set aside the verdict and dismissed the complaint.-

As already indicated, there was a question for the jury to determine, and it was error for the court to dismiss the complaint. It *398may have been proper to set aside the verdict on some of the grounds set forth in section 999 of the Code of Civil Procedure, but to go beyond that and dismiss the complaint,, thus closing the door of recovery upon the plaintiff, is without warrant in the record. It is never proper ■ to dismiss a complaint where there is a substantial conflict of evidence upon the material question in issue, even though in the judgment of the trial court the evidence is not sufficient to justify a verdict. The court may set the verdict aside and grant a new trial, and this it is often its duty-to do, but so long as there is any reasonable evidence in. support of an issue, it is the right of litigants to have that evidence passed upon by the jury.

The judgment and order appealed from should be reversed, with costs, and a new trial granted, with costs to abide the event.

Patterson, P. J., McLaughlin, Houghton and Scott, JJ., concurred. . ,

Judgment and order reversed, new.trial ordered, costs to appellant to abide event.