R 4401.Motion for judgment during trial

This rule is a restatement of former law with no substantial change. It consolidates in one motion for judgment during the course of the trial the motion to dismiss a complaint under CPA § 482, the motion for a directed verdict at the close of a claimant’s evidence and at the close of all the evidence under § 457-a, and the motion for judgment on a party’s admissions which was permitted by § 476.

The phrase “on the basis of admissions” would include dismissal of a complaint on the basis of counsel’s opening statements; although this practice is recognized, there is no specific reference to it in the present statute. See 6 Carmody-Wait, Cyclopedia of New York Practice 694–95 (1953).

Since a defendant’s motion to direct a verdict duplicates in function and consequences a motion to dismiss on the merits, this rule creates a single motion. One result of this simplification is to remove the confusion created by various sections of the CPA and RCP. For example, some referred only to a motion for dismissal of a complaint but were equally applicable to the identical motion to direct a verdict for the defendant. See, e.g., RCP 166(2). RCP 166(2) is omitted since the court has power to deny the motion upon terms without it. See also CPLR rule 4403. For provisions similar to RCP 166(2), see CPLR rules 3211 and 3212.

Use of the words “or issue” permits a motion after the close of the evidence on an issue separately tried by a jury demanded as of right. Where all the issues are tried at once and a party indicates that he has no further evidence on an issue, although he has not yet rested, a motion with respect to that issue may be made which might be dispositive of all or a part of the case. Compare CPA § 476 which permitted judgment “as to part of a cause of action” at “any stage of an action or appeal” if warranted by the pleadings or admissions.

Although the right to present evidence after denial of a motion for directed verdict is consistently recognized, the provision of the third sentence of this rule—derived from the first sentence of CPA § 457-a(2)—was retained because of the historical antecedents of the motion for judgment. The predecessor of the motion for directed verdict, the demurrer to the evidence, effected a waiver of the right to present evidence to the jury. See Smith, The Power of the Judge to Direct a Verdict, 24 Colum L Rev 111, 113 (1924); 6 Carmody-Wait, op cit supra at 709–10.

No standards for granting the motion are included in this rule. In New York, attempts to delineate by statute the court’s power to direct a verdict have confused rather than clarified the problem. An excellent history and analysis is contained in 15 NY Jud Council Rep 270–284 (1949). The report points out that the intention in passing the original version of § 457-a was to expand the court’s power to direct a verdict. Nevertheless, the section had been limited by judicial construction and the Judicial Council proposed an amendment to conform the statute to the rule set forth in the cases, which was enacted. Laws 1949, c. 604.

This rule, however, omits the Judicial Council’s provision which was formerly contained in subd 1 of § 457-a: “The court may direct a verdict when it would be required to set aside a contrary verdict for legal insufficiency.” Rather than formulating criteria for the direction of a verdict, that subdivision merely stated that the standard for directing a verdict was the same as for judgment notwithstanding the verdict. Since no standard was set for the granting of the latter motion and it was a renewal of the former (see CPA § 457-a(3)), the statement gave no guidance on when the court should decide the case and when it should leave it to the jury. Omission of the former provision is intended to clearly indicate that the standards for directing a verdict must be sought in case law. Cf. Fed RCP 50(b); CPLR rule 3212(a) (summary judgment).

The difficulty of formulating a standard has been aptly stated by Mr. Justice Rutledge in Galloway v United States, 319 US 372, 395 (1943): “Nor is the matter greatly aided by substituting one general formula for another. It hardly affords help to insist upon ‘substantial evidence’ rather than ‘some evidence’ or ‘any evidence’ or vice versa. The matter is essentially one to be worked out in particular circumstances and for particular types of cases. Whatever may be the general formulation, the essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.” Blum v Fresh Grown Preserve Corp. 292 NY 241, 54 NE2d 809 (1944), the leading New York case, has approved direction of a verdict where “by no rational process could the trier of the facts base a finding in favor of the defendant upon the evidence . . . presented.” Id. at 245, 54 NE2d at 811. The Court of Appeals pointed out that the “sufficiency of evidence ‘reasonably to satisfy a jury’ cannot be mechanically measured. It is ‘incredible as matter of law’ only where no reasonable man could accept it and base an inference upon it. That depends upon considerations which vary in accordance with the circumstances of the particular case.” Id. at 246, 54 NE2d at 811. Previously, in McDonald v Metropolitan St. Ry. Co. 167 NY 66, 70, 60 NE 282, 283 (1901), it had declared: “So long as a question of fact exists, it is for the jury and not for the court. If the evidence is insufficient, or if that which has been introduced is conclusively answered, so that, as a matter of law, no question of credibility or issue of fact remains, then the question being one of law, it is the duty of the court to determine it.”

Formerly § 4401, add, L 1962, ch 308; amd, L 1962, ch 315, § 1, eff Sept 1, 1963.