Hexter v. Pennsylvania Railroad

55 N.Y.S. 1105, 38 A.D. 619

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1899
• Status: Published

Opinion

McLAUGHLIN, J.

We think the ground upon which the learned trial justice set aside the verdict is untenable. If, however, the verdict was properly set aside, the order should be affirmed. The questions whether the verdict was against the weight of evidence, and whether the exceptions generally in the case were well taken, were not argued before us, and consequently we do not feel called upon to discuss them. It was held in Layman v. John Anderson & Co., 4 App. Div. 124, 38 N. Y. Supp. 883; Id., 13 App. Div. 625, 42 N. Y. Supp. 1127; Id., 22 App. Div. 152, 47 N. Y. Supp. 955 (and see order in same case filed in the clerk’s office of this appellate division, January 15, 1897),—that all such questions are foreclosed by our decision on an appeal such as the present, and cannot be raised hereafter upon an appeal from the judgment. As, however, the learned counsel for the respondent has presented none of these questions, and has not contended that the order was right because of any other error or upon any other ground than that upon which the learned judge acted, the order should be reversed, with costs. All concur.