Manhattan Brass Co. v. Gillman

23 Misc. 598, 51 N.Y.S. 1123

• Court: City of New York Municipal Court
• Decided: May 15, 1898
• Status: Published

Opinion

Conlan, J.

This is an appeal from a judgment, entered on the direction of a verdict in favor of the plaintiff and from an order denying a motion made by the defendant for a new trial.

The action is one brought on a promissory note and the defense is a general denial.

The plaintiff made its proof by offering the promissory note and the notice of protest in evidence.

The defendant objected generally, stating no ground of his objection. This was not sufficient and brings up nothing for review.

Plaintiff then rested and the defendant moved to dismiss the complaint without stating any ground or calling the court’s attention to any error or omission, which motion was properly denied.

Defendant’s counsel then called defendant as a witness, and attempted to show that the note was without consideration.

This was objected to by plaintiff’s counsel, as follows:

“ I object at the outset en the ground that an attempt to prove want of consideration or failure of consideration is not within the pleadings, that the defense is a general denial, and I submit that the defense of want of consideration should be specifically pleaded.”

The objection was sustained. Defendant then moved to- amend his answer and to withdraw a juror.

Both motions were denied, and as they were within the sound discretion of the trial judge will not be disturbed on appeal.

We find nothing in the record that warrants the reversal of the judgment and it must, therefore, be affirmed.

Scotchman, J., concurs.

Judgment affirmed, with costs.