Freedman v. Dickinson

85 N.Y.S. 333

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 17, 1903
• Status: Published

Opinion

BISCHOFF, J.

The appellant’s insistence that the counterclaim was not allowable does not appear to have been suggested at the trial, and the submission of the issues to the jury upon the theory that a recovery could be had by the defendants presents no error of law for our review.

Certain general objections to the defendants’ evidence were made, but these contained no hint that the counterclaim itself was not properly the subject of litigation before the jury, and there is no exception in the record to present any one of the grounds for reversal urged in the brief of counsel for the appellant.

We have no power to pass upon the weight of the evidence, after affirmance by the General Term; nor, in the absence of an appropriate motion and exception at the trial, may we consider the sufficiency of the evidence to support the verdict. Lowenthal v. Copland, 18 Misc. Rep. 6, 41 N. Y. Supp. 8.

This appeal having been taken first to the General Term of the City Court, we have no discretionary power to exercise in the matter of the conduct of the trial, and, under the well-settled rules governing an appeal of this character, we may only pass upon questions of law duly raised by exception in the court of original jurisdiction.

So far as the appellant complains of the disposal of the appeal by the General Term upon a motion for reargument, the papers before us present a case of absolute regularity; accepting, as we must, the recitals of fact contained in the orders and judgment.

Judgment affirmed, with costs. All concur.