#### Mary Hoffman, Appellant, *v.*Brooklyn, Queens County and Suburban Railroad Company, Respondent, Long Island Railroad Company, Appellant.

(Supreme Court, Appellate Term, Second Department,

December, 1912.)

Negligence — action for personal injuries against two defendants — verdict against one only — complaint dismissed against other defendant.

On the trial of an action brought against a trolley company and a railroad company, for personal injuries due to the derailing of a trolley car in which plaintiff was a passenger, motions of defendants’ counsel to dismiss the complaint, made at the close of plaintiff’s case, were denied with an exception to each defendant, and counsel for the railroad company, upon the denial of his motion for a nonsuit renewed after he put in his defense, stated that he withdrew from the case and did not desire to participate in the cross-examination of either the plaintiff on rebuttal, or his codefendant’s witnesses, but reserved the right to sum up. After defendant trolley company had put in its proof and the case was closed, motions to dismiss made by counsel for both defendants were denied and exception taken: Counsel for the parties summed up and the jury rendered a verdict in favor of the plaintiff for the full amount claimed, to be paid by defendant railroad company. After a denial of the railroad company’s counsel’s motion to set aside the verdict on the ground that it was contrary to *508law, to the facts and to the wording of the complaint, the complaint was dismissed as to the trolley company. On affirming the judgment entered on such dismissal, held, that from the language of the verdict it was in favor of the trolley company, and from the silence of plaintiff’s counsel and his omission to make appropriate motions plaintiff should be held to have acquiesced therein.

Appeal by plaintiff from a judgment dismissing the complaint in favor of Brooklyn, Queens County & Suburban Railroad Company.

Adolph Kiendl, for plaintiff, appellant.

Dominic B. Griffin, for defendant, appellant.

James W. Carpenter, for respondent.

Maddox, J.

Plaintiff, a passenger on one of the cars of the trolley company, sues to recover $500, damages for personal injuries, because of the alleged negligence of the. defendants, due to the derailing of the trolley car in which she was riding.

Trial before a justice and a jury, resulting in a verdict in plaintiff’s favor against the Long Island Railroad Company for $500'.

At the close of plaintiff’s case motions to dismiss were made by counsel for both defendants and denied with an exception to each, whereupon counsel for the Long Island Railroad Company put in its defense, oral, documentary and the concessions of the trolley company’s counsel, and rested its case; then he renewed his motion for a nonsuit which was denied, with an exception, and stated that he withdrew “ from the case;” did not “ desire to participate in the cross examination of either the plaintiff on rebuttal, or his co-defendant’s witneses,” but reserved to himself “ the right to sum up.”

The trolley company thereupon put in its proof and the case was closed, whereupon counsel for each defendant again moved to dismiss, which motions were denied with an exception.

*509Counsel for the Long Island Bailroad Company summed up, as did also the counsel for trolley company and for plaintiff, and the jury returned a verdict “in favor of the plaintiff for the full amount, to he paid by the Long Island Bailroad Company.”

The only motion then made was by the counsel for the Long Island Bailroad Company “ to set aside the verdict of the jury, upon the ground that it is contrary to the law, contrary to the facts, and contrary to the wording of the plaintiff’s complaint,” which was denied with an exception.

Ho return by the jury as to the trolley company was made and from the record it is to be assumed that the parties interpreted and construed the verdict to be in favor of the plaintiff as against the Long Island Bailroad Company only, as had been announced, but in favor of the trolley company against the plaintiff; the court then dismissed the complaint as to the trolley company with costs and judgment was entered accordingly.

The verdict was effectual as between the plaintiff and Long Island Bailroad Company and plaintiff, if aggrieved, might at that time have requested the court to instruct the jury as to their duty to find one way or the other, or to make some return as to the trolley company; this her counsel omitted to do.

It is to my mind clear that the jury found against the Long Island Bailroad Company and in favor of the trolley company, for such is the only conclusion to be reached from the language of their verdict, which was “ to be paid .by the Long Island Bailroad Company,” and from his silence and omission to make- appropriate motions plaintiff’s counsel should be held to have acquiesced therein and to have accepted such result.

Plaintiff has since appealed from the judgment of dismissal as to the trolley company. The case cited by her counsel (Porter v. Mount, 45 Barb. 422) does not aid her here. It does not appear that plaintiff in that case made any motion, but the court allowed her to dismiss the complaint and discontinue the action as against the defendant, as to whom the jury made no return, “ to the same effect as if a verdict had been found in his favor.” 426.

*510In Lockwood v. Bartlett, 130 N. Y. 340, no return was. made by a jury as against the defendant Smith; counsel for the defendants against whom the verdict had been returned contended that “ no verdict effectual to support the judgment ” had been rendered, and the court said, *“*as the plaintiffs consented to and did accept the verdict against those defendants, it is difficult to see any further support for the action against the defendant Smith while the recovery on the verdict remains effectual.” 353.

The defendant Long Island Railroad Company by going into its defense waived its exception to the refusal of the court to dismiss the case at the close of plaintiff’s evidence in chief. Jones v. Union R. Co., 18 App. Div. 267, 268; Porges v. United States Mortgage & Trust Co., 203 N. Y. 181, 185.

When it had concluded the introduction of its proof its counsel announced *“*that is my case. I renew my motion for nonsuit,” which motion was denied with exception. It is true that counsel then stated that he withdrew from the case, but he did not withdraw though he did not cross-examine the witnesses called by the trolley company; at the close of the whole-case he again renewed his motion and thereupon summed up the case to the jury; consequently he continued and participated in the submission of the case to the jury, thus in effect conceding that there were disputed questions of fact.

He relies upon Bopp v. New York Electric Vehicle Transportation Co., 177 N. Y. 33, as support for his contention that the Long Island Railroad Company may now avail itself of the full benefit of the exception taken when it had put in its proof, but the holding in that case must, it seems to me, be confined to the facts there presented.

I find no error in the court’s denying the Long Island Railroad Company’s motion, even if that defendant had the right to make and rely upon it, since there was then before the jury proof of the physical situation at the place in question and the distance of the facing point switch from the grade crossing of the defendants’ roads, ninety-four feet; the Long Island Railroad Company operating a steam, *511and the trolley company a street surface, railroad; where the trolley car then was and whether in motion or not, and that the Long Island Railroad Company’s switchman at such crossing had control of the switch. Upon such proofs that was enough to go to the jury upon the question of the switch-man’s conduct, whether negligent or not, and upon the proofs then before the court the minds of reasonable men might differ.

But aside from this last consideration I am of opinion that the Long Island Railroad Company had no justification, at the close of its proofs, to rest, and thus deprive the plaintiff of an opportunity of offering evidence in rebuttal as against its proof. If that practice were permissible then much confusion and injustice would result.

Blackmar and Putwam, JJ., concur.

Judgment affirmed, with costs.