Cohen v. Brooklyn & Queens Transit Corp.

The learned trial court erroneously entertained a motion made under the same circumstances as those set out in Dougherty v. Salt (227 N. Y. 200, decided in 1919). Although the motion to dismiss should not have been heard at the time when *277it was made, nevertheless a just result was reached in spite of the error, since in our view there was no evidence to justify the verdict. An appellate court under these circumstances now has power to affirm the final judgment. (N. Y. Const. art. 6, § 8, in effect Jan. 1, 1926, and Civil Practice Act, § 584, as amd. by Laws of 1926, chap. 215, April 2, 1926.)

The determination of the Appellate Term should be affirmed, with costs.

Present ■— Martin, P. J., McAvoy, O’Malley, Townley and Glennon, JJ.

Determination affirmed, with costs and disbursements.