Machauer v. Fogel

Appellate Terms of the Supreme Court of New York

Machauer v. Fogel

21 Misc. 637, 47 N.Y.S. 1056

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 15, 1897

StatusPublished

Cited by5 cases

This text of 21 Misc. 637 (Machauer v. Fogel) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Machauer v. Fogel, 21 Misc. 637, 47 N.Y.S. 1056 (N.Y. Ct. App. 1897).

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Opinion

Bischoff, J.

Where a judgment, rendered at a Trial Term of the City Court, has been affirmed by that court at General Term, the determination of a further appeal to this court proceeds upon rules assimilated to those governing appeals to the Court of Appeals from judgments of the Supreme Court (McEnteere v. Little, 8 Daly, 167; Kreizer v. Allaire, 16 Misc. Rep. 6), and, to the success of such an appeal, the presentation of any particular ground of grievance by a valid exception is indispensable. Schwinger v. Raymond, 105 N. Y. 648. Here the appellant’s alleged grievance appears to be that the verdict was not supported by the weight of the evidence, a matter which might have been presented to the General Term but which is not, in any event, involved upon this appeal. Meyers v. Cohn, 4 Misc. Rep. 185. Assuining the contention to be, however, that there was not sufficient evidence to take the case to the jury, the point may not be successfully maintained, since, at the close of all the evidence, the issues were submitted to [638]*638the jury without an exception having been taken, at that time, to any adverse ruling upon a motion for the dismissal of the complaint or for the direction of a verdict. The fact that suChTi motion was made and denied, under exception, at the close of the plaintiff’s case, cannot avail the appellant in view of this final state of the record (O’Sullivan v. Brooks, 10 Misc. Rep. 368), and he is further concluded by his failure'to take exception to any part of the charge or to raise any question of law upon the facts by requests to charge.

For the same reasons no effect can he given to the claim, as now made, that the recovery was, in a certain aspect, excessive (Briscoe v. Litt, 19 Misc. Rep. 5), and any further questions, which might be raised in the case upon exceptions taken to rulings upon evidence, must be deemed to have been waived by the appellant since he has been content to accept the result without directing our attention to such exceptions. Blant v. Gabler, 8 Daly, 48.

The judgment must he affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.

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Bischoff, J.

Where a judgment, rendered at a Trial Term of the City Court, has been affirmed by that court at General Term, the determination of a further appeal to this court proceeds upon rules assimilated to those governing appeals to the Court of Appeals from judgments of the Supreme Court (McEnteere v. Little, 8 Daly, 167; Kreizer v. Allaire, 16 Misc. Rep. 6), and, to the success of such an appeal, the presentation of any particular ground of grievance by a valid exception is indispensable. Schwinger v. Raymond, 105 N. Y. 648. Here the appellant’s alleged grievance appears to be that the verdict was not supported by the weight of the evidence, a matter which might have been presented to the General Term but which is not, in any event, involved upon this appeal. Meyers v. Cohn, 4 Misc. Rep. 185. Assuining the contention to be, however, that there was not sufficient evidence to take the case to the jury, the point may not be successfully maintained, since, at the close of all the evidence, the issues were submitted to [638]*638the jury without an exception having been taken, at that time, to any adverse ruling upon a motion for the dismissal of the complaint or for the direction of a verdict. The fact that suChTi motion was made and denied, under exception, at the close of the plaintiff’s case, cannot avail the appellant in view of this final state of the record (O’Sullivan v. Brooks, 10 Misc. Rep. 368), and he is further concluded by his failure'to take exception to any part of the charge or to raise any question of law upon the facts by requests to charge.

For the same reasons no effect can he given to the claim, as now made, that the recovery was, in a certain aspect, excessive (Briscoe v. Litt, 19 Misc. Rep. 5), and any further questions, which might be raised in the case upon exceptions taken to rulings upon evidence, must be deemed to have been waived by the appellant since he has been content to accept the result without directing our attention to such exceptions. Blant v. Gabler, 8 Daly, 48.

The judgment must he affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.

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21 Misc. 637, 47 N.Y.S. 1056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/machauer-v-fogel-nyappterm-1897.

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