(dissenting):
This action was brought to recover damages alleged to have been suffered by the plaintiff by reason of the negligence of defendant’s agent or servant in driving an automobile against him. We are satisfied that the verdict of the jury was properly set aside. The only question is one of practice.
At the close of the evidence the defendant moved to dismiss the complaint upon the ground that no negligence on the part of the defendant was shown, but that contributory negligence on the part of the plaintiff had been shown. This, motion was denied and an exception taken. Defendant also moved to dis*875miss upon the ground that there was no evidence to show that the injuries were caused by any act of the defendant or of its servants, agents or employees, and that it was shown that the car was not in the possession or under the control or operated by the defendant or any director, officer, agent or servant thereof. Decision on this motion was reserved with an exception to the plaintiff. The defendant also objected to the question going to the jury — “My motion was that the court should dismiss the complaint because we were not responsible.” '
After the jury had returned a verdict for the plaintiff, the defendant moved to set aside the verdict for the reasons specified in section 999 of the Code of Civil Procedure and upon the further ground that the question of the operation and control of the automobile should not have been submitted to the jury, and renewed the motion to dismiss, “which the court held under advisement upon the grounds then stated.” Upon this • decision was reserved and plaintiff excepted. Subsequently the court made an order setting aside the verdict and dismissing the complaint upon the merits, and a judgment was thereafter entered providing that'the verdict be set aside and that the complaint be dismissed upon the merits.
Section 1186 of the Code of Civil Procedure provides.that “ a general verdict is one by which the jury pronounces generally upon all or any of the issues in favor either of the plaintiff or of the defendant. A special verdict is one by which the jury finds the facts only, leaving the court to determine which party is entitled to judgment thereupon.” Section 1187: “In an action to recover a sum of money only "" * * the jury may render a general or special verdict in its discretion. * * * When a motion is made to nonsuit the plaintiffs or for the direction of a- verdict, the court may, pending the decision of such motion, submit any question of fact raised by the pleadings to the jury or require the jury to assess the damage. After the jury shall have rendered a special verdict upon such submission or shall have assessed the damage, the court may then pass upon the motion to nonsuit or direct such general verdict as either party may be entitled to. On an appeal from the judgment entered upon such nonsuit or general verdict such special verdict or general verdict shall form a part of the *876record, and the Appellate Division or the Court of. Appeals may direct: such judgment thereon as either1 party may be: "entitled to.”'
- In' Hoey v. Metropolitan Street R. Co. (70 App. Div. 60) at the close of the case defendant’s counsel moved for the dismissal of the complaint or for the direction of a verdict, and, pending the consideration of such motion, the trial court submitted to: the jury certain specific questions of fact with instructions to also render a general verdict. One of the specific questions of fact was:.. “ Did James J.. Hoey die September1 30, 1900, from hasty consumption?” .This was answered in the affirmative and a general = verdict' for $12,.500' was- rendered for the plaintiff. The jury ivas discharged and afterwards the1 court dismissed the complaint upon the merits, setting aside- the general verdict and the answers to' all the questions except the one above given. To this ruling plaintiff excepted. Judgment was entered, accordingly, from which an appeal was taken. This court said: “ The court had no power to dismiss the complaint upon the merits, nor to set aside the answers of the jury to the specific questions ;of fact submitted to or the verdict rendered by them... It will be observed that the section of the. Code referred to provides that after the jury shall have rendered a special verdict upon isuch submission; or shall have assessed the damages, the court may then pass upon the motion to1 nonsuit, or1 direct, a general verdict, and on appeal from the judgment entered, upon Such nonsuit or general verdict, such special verdict or general verdict shall form a part of the record and the Appellate Division may direct such judgment, thereon as either party may be entitled to. The trial court, therefore, could, after the rendition of the special verdict by the jury, have adopted:' either one of two courses; he could nonsuit the plaintiff or direct the jury to render a general verdict., He did not direct a general verdict,, nor did he nonsuit the plaintiff; but instead directed judgment dismissing the complaint upon, the merits.. This, was. clearly erroneous, but' in view of the conclusion -at which we have arrived, inasmuch as the special verdict is in fact set out in the record, it is of. no- importance, since this court has power to direct such judgment as either party may be entitled to; The *877judgment should have been one nonsuiting the plaintiff, instead of dismissing the complaint on the merits.”
In Antes v. Watkins (112 App. Div. 860), after the rendition of the verdict, a motion to dismiss the complaint, decision upon which had been reserved, was granted. Mr. Justice Patterson said: “ It is argued by the appellant that the court had no authority after a general verdict to dismiss the complaint: * * * No exception was taken in the present case to the reservation. Counsel for the plaintiff by neither objecting nor excepting acquiesced in the ruling of the court,” and for that reason held that “ an objection to the procedure is not now available to the appellant.”
In Russell v. Rhinehart (137 App. Div. 843), at the close of the case, a motion was made to nonsuit and also to direct a verdict for defendant. Decision was reserved, and the court submitted the case to the jury to find a general verdict. The jury found for plaintiff. Thereafter the verdict was set aside, and the motion to dismiss the complaint was granted, and from the judgment entered thereon plaintiff appealed. Mr. Justice Burr, after referring to the section of the Code cited, said: “It will be observed that, where the decision of a motion for nonsuit is reserved, the province of the jury is limited to rendering a special verdict or assessing damages. • It has no power to render a general verdict. The distinction between a general and a special verdict is pointed out by the preceding section. * * * The case of Levy v. Grove Mills Paper Co. (80 App. Div. 384) was a case where a decision on a motion for a nonsuit was reserved, a general verdict was taken, and thereafter the verdict set aside and the complaint dismissed, and the exceptions ordered to be heard in the first instance by the Appellate Division. The court in that case say that the practice was irregular, but it would appear from the record that the parties acquiesced in the action of the court in reinstating the verdict and entering judgment thereon. In that case no judgment had been entered, and the whole question might be deemed properly before the Appellate Division in view of the fact that the exceptions were ordered to be heard there in the first instance. “ * The practice of reserving decision upon a motion for a nonsuit, and then taking a general verdict from the jury, is *878not only unauthorized by the Code, but is in some respects unfair.”
In Bail v. New York, N. H. & H. R. R. Co. (201 N. Y. 355) the action was brought to recover damages resulting from the death of plaintiff’s intestate in consequence of the alleged negligence of the defendant. At the close of: the case a motion was made, to dismiss and the court reserved its decision, remarking that he would defer passing on: the motion and submit the question to the jury and see what the verdict would be. Neither party made any objection to the reservation of the motion but proceeded to sum up the case, thereby acquiescing in the court’s reserving decision upon the motion. After the jury had returned a verdict for the plaintiff, the court set aside the verdict, granted the motion to dismiss on the ground that there was no evidence showing freedom from contributory negligence. Haight,. J., said: “ It is now contended that the jury, having rendered a general verdict, the trial court had no'power to set the verdict aside and dismiss the complaint; that in case the court saw fit to set aside the verdict it was bound to grant a new trial and could not dismiss the complaint upon the merits. We agree with the contention of the plaintiff’s counsel that the court had no power to dismiss the complaint upon the merits, and in so far as the dismissal upon the merits is concerned the judgment should be modified by striking therefrom the words ‘on the merits.’ We are of the opinion, however, that the court did have the power to set aside the verdict and grant the motion for a nonsuit, for the reason that the deferring of the motion was acquiesced in by the counsel upon both sides. It is quite true that the right to move for a nonsuit does not exist after verdict, but when the- motion was made before the verdict and the decision thereof expressly reserved by the court, with the consent of the parties, until after the verdict the court may then, notwithstanding the verdict, render its decision upon the motion and cause judgment to be entered thereon. This has been the practice in the courts of this State for many years. [Citing cases.] In view, therefore, Of the fact that the parties are deemed to have acquiesced in and consented to the reservation of the decision of the defendant’s motion for a non-suit until after the verdict, it becomes unimportant to determine *879whether section 1187 of the Code of Civil Procedure applies to this case. E it does apply, then the trial judge had the power to reserve his decision until after verdict, even though the parties objected thereto, but if the provisions of that section only apply to special verdicts and not to general verdicts, then the provisions with reference to special verdicts have no application to this case and do not change the practice as it theretofore existed with reference to general verdicts.”
In the case at bar there is no question but that a general verdict was returned and that every question in the case had been sent to the jury for its consideration, and by no possibility can their verdict in favor of the plaintiff for the sum of $1,000 be deemed to be a special verdict.
It seems to me that the latest decision of the Court of Appeals establishes the practice in two respects: First, that if both parties acquiesce in the reservation a nonsuit may be granted after the verdict, but not upon the merits; second, that if the parties did not acquiesce there is no power in the court to dismiss the complaint but a new trial must be ordered.
The order appealed from should be modified by striking out so much thereof as directed the entry of a judgment dismissing the complaint upon the merits, should provide for the granting of a new trial, and as so modified affirmed, and the judgment should be vacated, without costs to either party.
Laughlin, J., concurred.
Order modified as stated in opinion, and as modified affirmed, with costs to respondent. Order to be settled on notice.