Carroll v. O'Shea

21 N.Y.S. 956, 2 Misc. 437, 51 N.Y. St. Rep. 579

• Court: New York Court of Common Pleas
• Decided: February 6, 1893
• Status: Published

Opinion

BISCHOFF, J.

Neither of defendant’s exceptions to the admission of evidence is available on appeal, because the ground of the objection is not stated. Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. Rep. 457.

Any defect in the proof when plaintiff rested could be and was cured by evidence adduced by either party after denial of defendant’s motion for dismissal of the complaint, (Plank Road Co. v. Thatcher, 11 N. Y. 102, 112; Tiffany v. St. John, 65 N. Y. 315, 317; Painton v. Railroad Co., 83 N. Y. 7;) and defendant’s failure to renew the motion, or to ask that a verdict be directed in his favor, conceded the-sufficiency of the evidence for submission to the jury, (Barrett v. Railroad Co., 45 N. Y. 629; Schwinger v. Raymond, 105 N. Y. 648, 11 N. E. Rep. 952.)

The case contains no order denying defendant’s motion on the minutes for a new trial, and an exception only to the denial of such a motion is ineffectual for any purpose. Matthews v. Meyberg, 63 N. Y. 656; Boos v. Insurance Co., 64 N. Y. 236. Besides, no appeal lies to this court from an order of the city court refusing a new trial. Code Civil Proc. § 3191; Wilmore v. Flack, 96 N. Y. 512; Smith v. Pryor, (Com. Pl. N. Y.) 9 N. Y. Supp. 636. The judgment appealed from must be affirmed, with costs. All concur.