Elliott v. Van Schaick — 26 A.D. 587

Majority

p. 587

Harry R. Elliott and Albert L. Bouyon, Appellants, v. Eugene Van Schaick, Respondent.

Headnote

Decision of a motion to direct a verdict—exception thereto, how taken, when the decision is reserved —power of review Toy the appellate court.

Where the decision upon a request made at the trial of an action by each of the parties for the direction of' a verdict in favor of such party has, by consent, been reserved, if the unsuccessful party neither flies, under sections 994 and 1185 of the Code of Civil Procedure, a notice of an exception to the decision of the court within ten days after its service upon him, nor appeals from, the denial of a motion for a new- trial, the appellate court has no power to review the correctness of the decision of the trial court in its direction-of a verdict, but is limited to a consideration of the exceptions taken on the trial.

Appeal by the plaintiffs, Harry B,. Elliott and another, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of June, 1897, upon the verdict of a jury rendered by direction of the court..

John Andrews, Jr., for the appellants.

Van Schaick & Norton, for the respondent.

At the close of the evidence both parties requested the court to direct a verdict. By consent, the decision of these applications was

p. 588

reserved ; subsequently the court directed a verdict for the defendant. Under the practice adopted, no exception could have been taken on the trial to the ruling of the court, for the decision was not made until after the close of the trial. Provision for such a case is made in sections 994 and 1185 of the Code of Civil Procedure, which authorize the unsuccessful party to file a notice of exception within ten days after the service of a copy of the decision of the court. The apjiellants have filed no exception to the direction of a verdict for the defendant. A motion for a new trial was made and denied, hut no appeal was taken from the order made on that application. We, therefore, have no power to review the correctness of the determination of the trial court in directing a verdict for the defendant, but are limited to a consideration of the exceptions taken on the trial. (Ainley v. Manhattan Railway Co., 47 Hun, 206 ; Dixon v. Dixon, 12 N. Y. St. Repr. 505 .) The exceptions taken relate solely to the admission of evidence. The appellants in tlieir brief have not argued them, and we think they are not well taken.

The judgment appealed from must be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.