Dearing v. Independent Union Telephone Co.

Appellate Division of the Supreme Court of New York

Dearing v. Independent Union Telephone Co.

145 A.D. 152, 129 N.Y.S. 13, 1911 N.Y. App. Div. LEXIS 1754

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 3, 1911

StatusPublished

This text of 145 A.D. 152 (Dearing v. Independent Union Telephone Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dearing v. Independent Union Telephone Co., 145 A.D. 152, 129 N.Y.S. 13, 1911 N.Y. App. Div. LEXIS 1754 (N.Y. Ct. App. 1911).

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Opinion

Kruse, J.:

The judgment from which the defendant appeals is for two penalties of $100 each, recovered under the provisions of section 103 of the Transportation Corporations Law (Gen. Laws, chap. 40; Laws of 1890, chap. 566; Consol. Laws, chap. 63; Laws of 1909, chap. 219), for refusing to transmit telephone messages.

The defendant contends that upon the. undisputed facts and findings contained in the decision, the defendant is not liable foi°the forfeiture imposed by the statute. Whether that is so or not, Í think the defendant is not in a position 'to raise that question.

Motions for a nonsuit and the direction of a verdict in its favor were made on behalf of the defendant, hut Were not ruled on by the trial court, as both parties consented that the jury be discharged, and the case was submitted for decision to the judge, who thereafter made his decision in writing, making findings as required by the Code of Civil Procedure (§§ 1010, 1022); but no exceptions thereto were filed so far as the. record discloses. Under such circumstances I think the question cannot be reviewed here on this appeal. (Code Civ. Proc. § 994; Frederick v. City of Johnstown, 47 App. Div. 221.)

While a motion for a new trial wks made and entertained on the judge’s minutes, under’section 999 of the Code of Civil Procedure, that does not aid the defendant, as that section applies only to a trial by jury, and this was a trial by the court. (Waydell v. Adams, 23 App. Div. 508.)

The judgment and order must,- therefore, be affirmed, with costs. ■ •

All concurred.

Judgment and order affirmed, with costs.

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Kruse, J.:

The judgment from which the defendant appeals is for two penalties of $100 each, recovered under the provisions of section 103 of the Transportation Corporations Law (Gen. Laws, chap. 40; Laws of 1890, chap. 566; Consol. Laws, chap. 63; Laws of 1909, chap. 219), for refusing to transmit telephone messages.

The defendant contends that upon the. undisputed facts and findings contained in the decision, the defendant is not liable foi°the forfeiture imposed by the statute. Whether that is so or not, Í think the defendant is not in a position 'to raise that question.

Motions for a nonsuit and the direction of a verdict in its favor were made on behalf of the defendant, hut Were not ruled on by the trial court, as both parties consented that the jury be discharged, and the case was submitted for decision to the judge, who thereafter made his decision in writing, making findings as required by the Code of Civil Procedure (§§ 1010, 1022); but no exceptions thereto were filed so far as the. record discloses. Under such circumstances I think the question cannot be reviewed here on this appeal. (Code Civ. Proc. § 994; Frederick v. City of Johnstown, 47 App. Div. 221.)

While a motion for a new trial wks made and entertained on the judge’s minutes, under’section 999 of the Code of Civil Procedure, that does not aid the defendant, as that section applies only to a trial by jury, and this was a trial by the court. (Waydell v. Adams, 23 App. Div. 508.)

The judgment and order must,- therefore, be affirmed, with costs. ■ •

All concurred.

Judgment and order affirmed, with costs.

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145 A.D. 152, 129 N.Y.S. 13, 1911 N.Y. App. Div. LEXIS 1754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dearing-v-independent-union-telephone-co-nyappdiv-1911.

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