Peniston v. Coleman

Appellate Division of the Supreme Court of New York

Peniston v. Coleman

140 A.D. 891, 125 N.Y.S. 1135

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 15, 1910

StatusPublished

This text of 140 A.D. 891 (Peniston v. Coleman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Peniston v. Coleman, 140 A.D. 891, 125 N.Y.S. 1135 (N.Y. Ct. App. 1910).

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Opinion

Motion denied, without costs. There is a dispute between the parties as to the exact language used when the motions to direct a verdict were made by plaintiff and defendants, respectively. As the return follows exactly the stenographer’s'minutes as to the proceedings except that it fails to show that before making the motion plaintiff’s counsel directed him to take the stand and that he walked within the inclosure about the witness stand and stood there while the motions were being made, without having been sworn, we think that the judge should not be asked to correct the return. Particularly is this so in view of the fact that in our opinion, the point raised by .the plaintiff appellant that he should have been allowed to withdraw his motion to direct a verdict and introduce evidence, is as fully presented by the return as made by the trial judge as it would be if the proposed amendments were allowed. Present — Woodward, Burr, Thomas, Rich and Carr, JJ.

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Motion denied, without costs. There is a dispute between the parties as to the exact language used when the motions to direct a verdict were made by plaintiff and defendants, respectively. As the return follows exactly the stenographer’s'minutes as to the proceedings except that it fails to show that before making the motion plaintiff’s counsel directed him to take the stand and that he walked within the inclosure about the witness stand and stood there while the motions were being made, without having been sworn, we think that the judge should not be asked to correct the return. Particularly is this so in view of the fact that in our opinion, the point raised by .the plaintiff appellant that he should have been allowed to withdraw his motion to direct a verdict and introduce evidence, is as fully presented by the return as made by the trial judge as it would be if the proposed amendments were allowed. Present — Woodward, Burr, Thomas, Rich and Carr, JJ.

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Bluebook (online)

140 A.D. 891, 125 N.Y.S. 1135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peniston-v-coleman-nyappdiv-1910.