by Dr. Marrill within less than a month before the issuance of the policy. This was a misrepresentation of material facts, and a breach of the warranty of the truth of the representations upon which the policy was issued and pursuant to the terms thereof rendered the policy void. Nor can it help the plaintiff that the agent of the defendant who solicited the insurance and aided in the preparation of the insured's application knew the representations therein contained to be false and untrue. See Foot v. The Etna Life Ins. Co., supra.

Judgment should be reversed, with costs..

ALLEN, BISCHOFF and PRYOR, JJ., concur.

SOPHIE ROBINSON, Resp't, v. GEORGE H. CORNISH, App'lt.

(New York Common Pleas, General Term, Filed February 2, 1891.)

APPEAL-COMMON PLEAS-DEPOSITIONS.

Orders made by the city court of New York in reference to the examination of parties and witnesses before trial are not reviewable in the court of common pleas. Such orders are discretionary.

MOTION to dismiss appeal.

Fromme Brothers, for app'lt; James A. Thompson, for resp't.

ALLEN, J.-Motion to dismiss an appeal from an order of the general term of the city court, affirming an order of the special term of that court denying a motion to vacate an order for the examination of a witness about to depart from the state.

The order appealed from is not reviewable by this court. Orders made pursuant to the Code of Civil Procedure, §§ 870-873, in reference to the examination of parties and witnesses before trial, are discretionary orders. Jenkins v. Putnam, 106 N. Y., 272; 8 N. Y. State Rep., 710. This court holds the same position with respect to the city court that the court of appeals holds with respect to the supreme court and the superior city courts. Mc Eteere v. Little, 8 Daly, 167; Walsh v. Shulz, 6 Civ. Pro., 126. The case of Lawrence v. Farley, 73 N. Y., 187, and many subsequent cases, have conclusively established that the court of appeals will not review the discretion of a court of original jurisdiction. In Jenkins v. Putnam, 106 N. Y., 276; 8 N. Y. State Rep., 710, where the appeal was from an order vacating an order for the examination of the plaintiff as a witness before trial, the learned court said: "It was one of those matters of practice and procedure which should always be left to the discretion of a court of original jurisdiction, and its decision should not be reviewed here unless it appears from its order that the decision was placed upon some ground of law not involving discretion." Following the course taken by the court of appeals, it has been invariably held by this court that it will not review discretionary orders of the city court. Walsh v. Shulz, supra. It does not appear in the case before us that the decision of the city court was placed upon any ground of law not involving discretion, and the appeal must, therefore, be dismissed, with costs.

BISCHOFF and PRYOR, JJ., concur.

EDWARD P. YALE et al., Resp'ts, v. HENRY C. DART et al., App'lts.

(New York Common Pleas, General Term, Filed February 2, 1891.)

1. TRIAL-MOTION FOR DIRECTION OF VERDICT DOES NOT PREJUDICE RIGHT TO GO TO THE JURY.

A motion for the direction of a verdict is not an absolute and irrevocable renunciation of the right to submit the case to the jury; but after a denial of such motion a party may still go to the jury on the controverted questions of fact.

2. SAME.

A motion made by plaintiff for the direction of a verdict was denied, but subsequently on a similar motion made by defendant the court directed a verdict for plaintiff, stating that as both counsel had moved for a direction, they thereby admitted that there was no question of fact in the case, and the matter was submitted to the court as a question of law. Prior to the conclusion of such direction defendant's counsel endeavored to withdraw his motion and asked leave to go to the jury, which was refused. Held, error.

· APPEAL from judgment of the city court of New York, entered on a verdict directed by the court.

Action by payees against acceptors of a bill of exchange.

Defense: That the acceptance was for the accommodation of the payees; or else for the accommodation of one C. A. Smith, to whom it was given for a special purpose, and by whom it was diverted and fraudulently negotiated to plaintiffs, who are not holders for value, and who, besides, on the maturity of the bill, and in payment of it, received from said Smith the acceptance of the Monlo Milling Company.

Howard Y. Stillman, for app'lts; T. Henry Dewey, for resp'ts.

PRYOR, J.-Independently of the allegations of error affecting the merits of the action, we are of opinion that the record discloses an error of the court in the conduct of trial which necessarily involves a reversal of the judgment.

On conclusion of the evidence, this occurred:

"Plaintiffs' counsel: I ask your honor to direct a verdict for the plaintiffs upon the testimony.

"Motion denied. Plaintiffs except.

"Plaintiffs' counsel thereupon addressed the jury, summing up on behalf of the plaintiffs.

"Defendants' counsel: I ask your honor to direct a verdict for the defendants, on the ground that the testimony is undisputed, that the plaintiffs paid no value for this draft, and that the draft was without consideration.

"The Court: Then I will direct a verdict in favor of the plaintiffs. (To the jury.) Gentlemen: The counsel on either side request that I shall direct a verdict. They thereby admit that there is no question of fact in the case.

"Defendants' counsel (interrupting): Then I withdraw my motion, and ask to go to the jury upon the questions of fact in the

case.

"The Court: I cannot permit the motion to be withdrawn. As I have said, gentlemen, the counsel thereby admit that there is

no question of fact in the case, and the matter is submitted to the court as a question of law. The amount of the draft is $230; interest, $21.39, and $1.29 protest fees, amounting in all to the sum of $252.68, for which I direct you to render a verdict in favor of the plaintiffs.

"Verdict accordingly.

"Defendants' counsel excepted to the direction.

"Defendants' counsel moved for a new trial on the minutes, which motion was denied, and defendants' counsel excepted."

By the denial of plaintiffs' motion for the direction of a verdict in their favor, the court unequivocally signified that either a verdict would be directed for the defendants, or else the case be submitted to the jury. Confiding in this assurance, counsel for defendants moved for a direction in their favor, but the court denied the motion. Thereupon the counsel, seeking to avail himself of the other alternative, asked to go to the jury; but the court refused the request, and directed a verdict for plaintiffs.

The denial of plaintiffs' motion for a direction in their behalf was a decision by the court that plaintiffs were not entitled to such direction. The denial of defendants' motion for a direction was a decision by the court that they were not entitled to such direction. The necessary effect of the denial of both motions was a declaration by the court that the case exhibited a question of fact for solution by the jury. Lake Superior Co. v. Drexel, 90 N. Y., 87, 92; Vietor v. Bauer, 11 N. Y. Supp., 100; 32 N. Y. State Rep., 198. Defendants' request to go to the jury was refused for the reason that by the motion for a direction they had conclusively conceded that there was no question for the jury. In other words, defendants' motion for a direction was denied because the facts. were in controversy; and their request to go the jury was denied. because their motion for a direction showed that there were no facts in controversy. And by this argument in a vicious circle defendants were deprived of their constitutional right of trial by jury.

But a motion for the direction of a verdict is not an absolute and irrevocable renunciation of the right to submit the case to the jury. The rule is, that by such motion a party estops himself from contending on appeal that there were questions of fact for the jury, unless he requests to go to the jury after denial of the motion. Dillon v. Cockcroft, 90 N. Y., 649; Ormes v. Dauchy, 82 id., 443; Koehler v. Adler, 78 id., 287.

It is a question whether, when a party omits to move for a direction in his favor, he may insist on appeal that the verdict was without evidence or against the weight of evidence. Sickels v. Gillies, 45 How., 94, 96; Caspar v. O'Brien, 15 Abb., N. S., 402, 403; Rowe v. Stevens, 53 N. Y., 621; Barrett v. R. R. Co., 45 id., 628, 632. But if a party may not move for a nonsuit or direction except under the penalty of precluding himself from the right of submission to the jury, he is subjected to a dilemma upon one or the other horn of which he is inevitably impaled. This, however, is not the law. By all the authorities, after denial of his motion N. Y. STATE REP., VOL. XXXVI. 6

for a nonsuit or direction, a party may still go to the jury upon the controverted questions of fact.

But, it is objected that defendants did not sufficiently specify the facts upon which they desired the decision of the jury. Counsel had asked the court to direct a verdict for the defendants "on the ground that the testimony is undisputed that the plaintiffs paid no value for the draft, and that the draft was without consideration." By denying this request the court virtually ruled that these facts were not undisputed; for, otherwise, the court must have non-suited the plaintiffs. Then counsel asked to go to the jury "upon the questions of fact in the case." What facts? Manifestly the facts which he had assumed to be uncontroverted, but which the court had ruled to be in controversy. These were the facts, and the only facts, in the mind either of the court or counsel. No other questions of fact had been suggested by either; and, indeed no other questions of fact, necessary to the decision of the case, are apparent upon the evidence. Plainly, then, the questions of fact which counsel desired to submit to the jury were, whether the bill was accommodation paper, and whether plaintiffs had paid value for it. Of this there could be neither doubt nor mistake, and so the question of fact sought to be submitted to the jury was sufficiently indicated by the motion.

Again, it is urged that no exception was taken to the denial of the request to go to the jury. But the direction of a verdict was a denial of defendants' request to go to the jury; and the exception was "to the direction," merely; not to the direction of a verdict for plaintiffs. In terms the court never refused the request to go to the jury, but in response to that request simply directed a verdict for plaintiffs. Since plaintiffs seek to stand upon the extreme technicality of the law, a failure on their part to observe that same technicality suffices for their overthrow.

Furthermore, the refusal of the court to suffer defendants to withdraw their motion for the direction of a verdict, was error. As already shown, the motion for a direction was essential to the preservation of all the defendants' rights. In response to this motion, the court assumed that counsel had thereby admitted, absolutely and definitively, that there was no question of fact in the case, and so that defendants had irrevocably authorized the court to dispose of the case without the intervention of the jury; an unwarrantable assumption. Instantly upon this intimation by the court, defendants' counsel said, "Then I withdraw my motion and ask to go to the jury;" to which the court replied, "I cannot permit the motion to be withdrawn." Why not? Nothing had intervened to create an estoppel against the motion; the rights of neither party had been affected by the motion. The court had not yet directed the jury; the remark "I will direct a verdict for the plaintiffs," being addressed, not to the jury, but to the counsel. When defendants perceived that the legal effect of their motion had been misconstrued by the court to their prejudice, they had an incontestable right to rescue themselves from the peril in which the mistake of the court had involved them.

Such was not the measure meted to the plaintiffs. They too

asked the direction of a verdict in their favor; but instead of accepting the request as a submission of the case to the arbitrament of the court alone, the learned trial judge virtually allowed them to withdraw the motion, by suffering them to sum up the case to the jury. Nay, more, the learned judge himself exercised a power of revocation which he refused to defendants; for, after declining to direct a verdict for plaintiffs, the moment defendants were beguiled into a similar motion, he recalled his previous ruling, and directed a verdict for plaintiffs.

It is said defendants took no exception to the refusal of leave to withdraw their motion for the direction of a verdict. But, no exception was necessary. An exception is allowable only "upon a question of law arising upon the trial of an issue of fact, Code, $992; and that this provision applies to a trial by a jury is manifest not only from the office of an exception, but from the last sentence of the cited section. Now, the refusal of leave to withdraw the motion was not a ruling upon a question of law; but was a mere volition of the judge; and an exception to it could by no possibility have raised a question of law for review. But the exception to the direction of a verdict for plaintiffs necessarily involved an exception to everything implied in this direction; that is, to the assumption that the case was still with the court for decision; in other words, to the assumption that defendants' withdrawal of the motion was ineffectual; more specifically still, to the denial of leave to withdraw the motion.

Permission of the court to withdraw the motion for a direction was not necessary to its withdrawal. The court had not yet acted upon the motion; and whether or not it should be withdrawn. was dependent upon the will of defendants alone; and when they declared it withdrawn, it was withdrawn; at all events to the effect of reserving their right to go to the jury. For that purpose the motion is habitually withdrawn after its denial by a request to submit the facts to the jury. Similarly, in this case, if the motion be supposed to stand as far as to retain the denial of it in the record, defendants still had a right to go to the jury; and the denial of that right is fatal error.

The judgment must be reversed, and a new trial had, costs to the appellants to abide the event.

ALLEN and BISCHOFF, JJ., concur.

ELVIRA PURDY, Resp't, v. THE MANHATTAN ELEVATED R. Co. et al., App'lts.

(New York Common Pleas, General Term, Filed February 2, 1891.)

1. INJUNCTION-SUBSTANTIAL INJURY MUST BE SHOWN.

In order to give a plaintiff a right to injunctive relief, it is necessary to establish a substantial injury, and not merely a technical wrong calling for nominal damages, and this whether the injury be single or continuous, and whether it be the subject of only one or of successive actions.

2. SAME-MULTIPLICITY OF ACTIONS.

To authorize an injunction on the ground of preventing multiplicity of suits, the fact must be alleged and proved that a number of suits are pending or expected.