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Smith v. Pryor

16 Daly (N.Y.) 169 Court N.Y.C.P. Decision date 1890-04-07 English

Delivered by J. F. Daly, J.

Contents

Majority

p. 169
Charles G. Smith, Appellant, against S. Morris Pryor et al., Respondents.
(Decided April 7th, 1890.)

Headnote

No appeal lies to the Court of Common Pleas from an order of the City Court of Hew York either granting or denying a motion for a new trial upon the ground of newly discovered evidence.
No appeal lies to the Court of Common Pleas from an order of the City Court of Hew York refusing a new trial for alleged misdirection to the jury, unless an exception thereto has been taken upon the trial.
Appeal from an order of the General Term of the City Court of New York affirming an order of that court denying a motion for a new trial, upon the ground of newly discovered evidence, and upon the ground of error in the charge of the justice to the jury.
p. 170
Saunders, Webb, Worcester, for appellant.
Lowrey, Stone, $ Auerbach, for respondents.

No appeal lies to this court from an order of the City Court either granting or denying a new trial upon the ground of newly discovered evidence (Lesser v. Wunder, 9 Daly 70 ). The Court of Common Pleas holds the same position with respect to the City Court of New York City which the Court of Appeals holds with respect to the Supreme Court and the Superior City Courts (Walsh v. Schultz, 6 N. Y. Civ. Pro. Rep. 126; Rowe v. Cornley, 11 Daly 318 ) ; and the Court of Appeals will not entertain an appeal from an order of the last named courts granting or refusing a new trial (Donley v. Graham, 48 N. Y. 658 ; Smith v. Platt, 96 N. Y. 635 , and cases cited). The court below did not refuse to exercise its discretion for want of power, or for any other reason, and the authorities cited by the appellant are not therefore in point.

No appeal lies to this court from an order of the City Court refusing a new trial for alleged misdirection to the jury, unless an exception thereto has been taken upon the trial. “ When a trial and general verdict have been had we can deal only with questions of law arising upon exceptions duly taken.” (Rowe v. Qornley, 11 Daly 318 ). There was no exception taken to the alleged misdirection of the judge pending the trial, and there is nothing for us to review.

The order appealed from should be affirmed, with costs and disbursements (Burin v. Simmons, 14 Daly 456 ; 15 N. Y. St. Rep. 370 ).

Larbemobe, Ch. J., and Bischoff, J., concurred.

Order affirmed, with costs.

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