Croissant v. Doscher

244 A.D. 736, 278 N.Y.S. 947

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1935
• Status: Published

Opinion

Action to recover damages for personal injuries sustained by the plaintiff, an infant, when struck by defendant’s automobile on a public highway. Order granting defendant’s motion to vacate and set aside the verdict of the jury and also vacating the judgment entered on said verdict reversed on the law, with ten dollars costs and disbursements, motion denied and judgment reinstated. The appeal in so far as it purports to be from the judgment entered on said order “ directing judgment for the defendant, Orrin Doscher, and against the plaintiff for the sum of $75.75 costs ” is dismissed for the reason that there is no such judgment in the record. While there is no warrant or authority for accepting an unsworn statement in a civil action in lieu of sworn testimony (Gehl v. Bachmann-Bechtel Brewing Co., 156 App. Div. 51), and the plaintiff’s case rests solely on the unsworn statement of the infant plaintiff, the question was not raised by the defendant either on the trial or in this court. Defendant will be presumed to have acquiesced in the procedure adopted. The grounds on which the verdict was set aside are those contained in section 549 of the Civil Practice Act. Such a motion must be made at the same term, and upon the expiration of the term the court is without power to entertain it. (Ellis v. Hearn, 132 App. Div. 207; Clancy v. N. Y., N. H. & H. R. R. Co., 226 N. Y. 213.) The record here discloses that at the close of the trial the defendant made an appropriate motion, which was denied and judgment entered as stated. The order under review was granted at the following term. Lazansky, P. J., Hagarty, Scudder, Tompldns and Davis, JJ., concur.