Meyer v. Suburban Home Co.

25 Misc. 311, 54 N.Y.S. 568

Opinion

Conlan, J.

This is an appeal from a judgment entered on a verdict of a jury. The action was brought to recover commissions earned by the plaintiff as a salesman of real estate for the defendant.

Judgment was entered on the 11th day of June, 1898. The case was tried before Mr. Justice Schuchman and a jury on the 16th and 17th days of June, 1898.

The defense was that the plaintiff was not employed by the defendant, but by one Hewitt, who had no authority to employ the plaintiff for the defendant’s company, and that Hewitt employed the plaintiff expressly as his servant and not as the servant of the company.

At the close of the testimony no motion was made to dismiss the complaint or to direct a verdict for the defendant. This must be taken as an admission on the part of the defendant that there was evidence on which a jury could find for the plaintiff and precludes it from saying that the verdict is without evidence to support it. Steinau v. Scheuer, 15 App. Div. 5; Peake v. Bell, 7 Hun, 454.

Again, the appeal is from the judgment only, there being no appeal from the order denying the motion for the new trial. The facts were not brought up for review. Boos v. World Mutual Life Ins. Co., 64 N. Y. 236.

We have examined the exceptions taken by the defendant to the exclusion and admission of evidence on the trial but find no error that calls for reversal of the judgment.

Eitzsimons, Oh. J., and O’Dwyeb, J., concur.

Judgment affirmed, with costs.