#### John D. Casey, Administrator, Appellant, v. Charles Deinet, Appellee.

Gen. No. 20,449.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.

Reversed and remanded.

Opinion filed April 13, 1915.

Statement of the Case.

Action by John D. Casey, administrator of the estate of Julia M. Dickinson, deceased, against Charles Deinet to recover the sum of ten thousand dollars for the wrongful death of said Julia M. Dickinson as the result of the alleged negligence of the defendant.

The decedent was a tenant of the defendant and at the time of the injury, which subsequently resulted in her death, was engaged in assisting another tenant of the defendant occupying an apartment above that leased by the deceased. While leaning against the railings on the porch, they gave way, precipitating her to a roof below, resulting in injuries which subsequently caused her death. At the conclusion of the plaintiff’s evidence, on motion of the defendant, the court orally instructed the jury to find the defendant not guilty, not because of the insufficiency of the evidence, but upon the grounds, as orally stated by the court, that “the declaration contains no allegation of any facts from which the court can conclude that plaintiff’s in*253testate was lawfully upon the premises in question or that the defendant owed her any duty,” and that “the declaration does not state a cause of action.” From the judgment entered in favor of the defendant on the verdict so returned, the plaintiff appeals.

Abstract of the Decision.

1. Trial, § 212 * —when sufficiency of pleading cannot be tested by motion for directed verdict. A defendant pleading to the merits, without demurrer, cannot test the sufficiency of the declaration by a motion for a directed verdict.

2. Trial, § 185*—when oral peremptory instruction imp-roper. An oral instruction to the jury to find a defendant not guilty of negligence is in violation of section 73 of the Practice Act (J. & A. ¶ 8610).

McMahon & Cheney and E. C. Reniff, for appellant.

P. H. Bishop, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Gridley

delivered the opinion of the court.