Burrows v. Oscar Scherer & Bros.

The action was instituted' by the plaintiffs as an equity action and thereafter the plaintiffs applied at Special Term for an order framing the issues for a trial by jury. The motion was granted and twenty-one issues were framed for that purpose. The framed issues came on for trial before Mr. Justice Townley and a jury at Trial Term, Part 19, and after a trial of seven days the jury answered all the questions framed in favor of the defendants.

The action is one under sections 90 and 91 of the General Corporation Law* against the directors of a corporation and a reading of the complaint and of the framed issues discloses that all the issues of fact in the action have been determined by the findings of the jury. The court has power at Special Term to grant a motion for judgment after a verdict has been rendered by a justice of the Special Term. (Hammond v. Morgan, 101 N. Y. 179.) Judge Earl in writing the opinion in that case held that the questions thus submitted to and answered by the jury, together with the facts admitted by the pleadings, cover the whole case so that no further facts need be proved for the information of the court. A motion may be made at once for judgment.

Plaintiffs urge that this motion should be deferred until the Appellate Division passes upon the appeal from the order of Mr. Justice Townley denying the motion for a new trial of the framed issues. As a matter of fact, defendants attempted in vain to obtain a stay of this motion from the Appellate Division. There is no reason why the whole case cannot be disposed of in one appeal, and the interests of justice would seem to require it. The motion is granted, with costs. Plaintiffs may have a thirty days’ stay and sixty days in which to make and serve a case. Submit decision and judgment on notice.