Eastwood, Bigelow and Francis, JJ. The opinion of the court was delivered by Eastwood, S.j.a.d.
The issue brought up by this appeal relates to the power of the trial court to set aside the verdict of a jury and direct a new trial. At a trial before the Law Division, Hudson County, the jury returned a verdict in favor of the plaintiff, Benjamin Annichiarico, in an action to recover certain unpaid portions of salary allegedly due him by reason of his employment with the defendant company between June 1, 1946, and January 18, 1950. Thereafter, the court, on defendant's motion, granted a new trial, on the ground that the verdict was against the weight of the evidence. On plaintiff's application, this court granted leave to appeal from the ensuing order.
At the opening of the case, in the presence of the jury and with the parties' approval, the court stated:
"The Court: It is stipulated and agreed between the parties that the plaintiff was an employee of the defendant between June 1st, 1946, and January 18th, 1950, and received a rate of compensation during that period of time.
The plaintiff contends that the rate of compensation paid him was less than that paid for work performed by a person known as a diesetter.
The defendant contends that the plaintiff was not employed as a die-setter.
The issue to be tried and determined by the jury is whether or not the plaintiff was employed by the defendant between June 1st, 1946, and January 18th, 1950, as a die-setter.
If the jury returns a verdict that the plaintiff was employed as a die-setter, the rate of compensation is fixed by contract and has been agreed upon.
If the jury finds that the plaintiff was not employed by the defendant as a die-setter, the verdict should be of no cause for action.
The plaintiff contends that he was employed as and worked as a die-setter.
The defendant denies that he was either employed as a die-setter or worked as a die-setter.
Therefore, if the jury find that the defendant was not -- or rather, that the plaintiff was not employed as a die-setter, the ...