Smith v. Simmons

21 N.Y.S. 47, 49 N.Y. St. Rep. 302

Opinion

PUTNAM, J.

No exceptions were taken during the trial that should cause a reversal of the judgment. After the parties had rested, defendant moved that the court direct a verdict against plaintiff, in his favor, of.no cause of action. Plaintiff asked to go to the jury upon the questions involved in the case. The court denied the plaintiff’s motion, and directed a verdict for the defendant. To this ruling of the court, and direction, no exception was taken by the plaintiff. The plaintiff then moved for a new trial upon all the grounds specified in section 999 of the Civil Code,¹ which motion was denied, plaintiff excepting. Inasmuch as no valid exception was taken by the plaintiff during the progress of the trial, nor to the direction of the court to the jury to render a verdict in favor of defendant, the motion for a new trial was properly denied; but, if otherwise, as nó order was entered denying the motion, we cannot consider the propriety of the ruling of the court. The question is not before us. The only way that the exception from the ■order denying a new trial could be considered by us would be on appeal from the order, had one been entered. There is no order, and hence no appeal from the ruling of the court denying the motion. All that is before us, therefore, is the appeal from the judgment; and, no exception being taken to the direction for a verdict, or other material exception to the rulings of the court upon the trial, and as, under the circumstances, we cannot consider the case upon its merits, it follows that the judgment must be affirmed, with costs. See Jacobsen v. Cornelius, (Sup.) 5 N. Y. Supp. 306; Railroad Co. v. Ebling, 100 N. Y. 98, 2 N. E. Rep. 878; Ainley v. Railway Co., 47 Hun, 207. All concur.

1 Code Civil Proc. § 999, provides that the judge presiding at a trial by jury may, in his discretion, entertain a motion made upon his minutes at the same time to set aside the verdict, and grant a new trial, upon exceptions, or because the verdict is excessive or insufficient, or otherwise contrary to the evidence or contrary to law. If an appeal is taken from the order made upon the motion, it must be heard upon a case prepared and settled in the usual manner.