Bell v. Moen's Asphaltic Cement Co.

54 N.Y.S. 1095

Opinion

PER CURIAM.

Application denied. We are without power to grant leave, and leave is unnecessary if the plaintiff gives the stipulation prescribed by the constitution and subdivision 2 of section 190 of the Code of Civil Procedure. As for the suggestion that the court of appeals cannot review the unanimous determination of this court, that there is evidence to sustain a finding of fact or verdict, it is sufficient to say— First, that this court has not found that the evidence sustains the verdict, but exactly the contrary, and therefore it does not fall within the provision of the Code; second, if it did, this court would have no power to dispense with the constitutional provision limiting the power of the court of appeals on review. See 52 N. Y. Supp. 1084.