Bessey v. Driscoll , 202 A.D. 817 ( 1922 )

The orders entered by the court in January recited that defendant had moved to set aside the verdict as against the corporation, and also that plaintiff had moved to set aside the verdict in favor of defendant Driscoll. We must assume that this recital meant that a regular motion had been made at the proper term. This assumption accords with what appears on the minutes as having taken place on the twentieth day of December, during the term at which the case was tried. Defendant moved to set aside the verdict as against the corporation, to which plaintiff’s counsel consented on the ground of inconsistency. Defendant then emphasized the fact that the motion he made was in behalf of the corporation alone, and the court said: “ And Mr. Butler joins in the application to set it aside on the ground that the verdict is inconsistent.” The court thereupon stated that the motion was granted and the case returned to the general calendar for trial. The remarks of the court and the counsel, made at the time of the trial, are susceptible of the interpretation that the court stated that plaintiff had moved to set aside the verdict on the ground of inconsistency, and that this referred to that portion of the verdict which was in favor of defendant Driscoll. No other reasoning is admissible, for the plaintiff had already consented to the limited motion made by defendant. We think that the recital in the order was fully justified by what appears in the clerk’s minutes. The court had power to set aside the verdict in favor of defendant Driscoll. The Civil Practice Act (§ 549) authorizes the judge presiding at the trial to set aside the verdict because it is “ contrary to law.” A verdict by the same jury in the same case making two contradictory decisions on the same essential issue is “ contrary to law.” Orders unanimously affirmed, with costs. Present — Blaekmar, P. J., Rich, Kelly, Jaycox and Young, JJ.