Strebel v. Smith — 208 A.D. 751

Majority

p. 751

Third Department,

January, 1924.

Stephen Strebel, as Administrator, etc., of Anna Barbara Neumann, Deceased, Respondent, v. Lucy Smith, Appellant.

Headnote

Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the Sullivan county clerk’s office July 6, 1923, upon the decision of the court, rendered after a trial at the Sullivan Trial Term, certain questions of fact having been submitted to the jury.

The defendant does not claim that the complaint is insufficient. She claims that it does not state a cause of action in equity. We are of the opinion that it does state an equitable cause of action. If otherwise, however, the defendant is in no position to raise the question, having failed to procure a ruling thereon and to except to such ruling if adverse: (Hand v. Kennedy, 83 N. Y. 149 , 155.) The findings although unnecessarily numerous contain such as are essential to sustain the judgment. A careful consideration of the evidence leads us to the conclusion that such findings as are essential to support the judgment are themselves supported by the evidence. Judgment unanimously affirmed, with costs.

Cases cited

Hand v. Kennedy 83 N. Y. 149 N.Y. 1880-12-07 at 155 p. 751