I do not find that the respondent makes any question that a trial Judge may reserve decision on the motion for a new trial on the minutes, or that the moving party waives any right by failing to except to his doing so. Ho such absurdity was ever heard of. The objection of the respondent is that the motion of the defendant for a dismissal at the close having been reserved by the trial Judge until after verdict, there is in the record no exception to the denial of that motion, which did not occur until after verdict. The appellant omitted to file such exception, as it had the right to do. I concur in the opinion on the main question, and also that the order denying the motion on the minutes for a new trial brings up to this court, though not to the Court of Appeals, the question of whether there was any evidence on which to go to the jury, as well as the weight of evidence, and all errors of law, provided the motion be made on such ground or grounds. This is made so plain by section 999 of the Code itself, that citation of authority for it must rarely be necessary (Brennan v. City of New York, 123 App. Div. 7).
Judgment and order reversed and new trial granted, costs to abide the event.