Hyperlawhypertext legal database Carroll v. O'Shea 2 Misc. 437

← Cases

Carroll v. O'Shea

2 Misc. 437 Court General Term, English

Delivered by Bischoff, J.

Contents

Majority

p. 437
Carroll v. O’Shea.
(New York Common Pleas
General Term,
February, 1893.)

Headnote

Exceptions to the admission of evidence are not available where the ground of the objection is not stated.
When plaintiff rests, any defect in proof is cured by evidence received after denial of a motion to dismiss the complaint.
Failure to renew a motion for dismissal or to ask for the direction of a verdict concedes the sufficiency of the evidence for submission to the 5™y-
An exception to the denial of a motion for a new trial is ineffectual for any purpose where the case contains no order denying defendant’s motion, on the minutes, for a new trial.
Mo appeal lies to the General Term of this court from an order of the City Court refusing a new trial.
Appeal from a judgment of the General Term of the City Court of New York, affirming a judgment for plaintiff which was entered upon the verdict of a jury.
Action to recover broker’s commissions on the sale of real estate.
Wandorf II. Phillips, for plaintiff (respondent).
Fellows, Gray efe Ha/rtman, for defendant (appellant).

Neither of defendant’s exceptions to the admission of evidence is available on appeal because the ground of the objection is not stated. Cruikshank v. Gordon, 118 N. Y. 178 .

Any defect in the proof when plaintiff rested could be and was cured by evidence adduced by either party after denial of defendant’s motion for dismissal of the complaint (Schenectady & Saratoga R. Co. v. Thatcher, 11 N. Y. 102 , 112; Tiffany v. St. John, 65 id. 315, 317; Painton v. Northern Cent. R. R. Co., 83 id. 7); and defendant’s failure to renew the motion, or to ask that a verdict be directed in his favor, conceded the sufficiency of the evidence for submission to the jury. Barrett v. Third Ave. R. R. Co., 45 N. Y. 628 ; Schwinger v. Raymond, 105 id. 648 .

p. 438
The case contains no order denying defendant’s motion on the minutes for a new trial, and an exception only to the denial of such a motion, is ineffectual for any purpose. Matthews v. Meyberg, 63 N. Y. 656 ; Boos v. World Mut. L. Ins. Co., 64 id. 236.

Besides no appeal lies to this court from an order of the City Court refusing a new trial. Code Civ. Proc. § 3191; Wilmore v. Flack, 96 N. Y. 512 ; Smith v. Pryor, 16 Daly, 169 .

The judgment appealed from must be affirmed, with costs.

Daly, Ch. J., and Pryob, J., concur.

Judgment affirmed.

Cases cited