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Paige v. Chedsey

4 Misc. 183 Court General Term, English

Delivered by Bisohoff, J.

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p. 183
Paige v. Chedsey.
(New York Common Pleas
General Term,
June, 1893.)

Headnote

Plaintiff brought suit in the City Court of New York to recover §400 alleged to be due for moneys received by defendants to plaintiff’s use. Defendants denied the indebtedness, and set up a counterclaim, the amount of which for the purposes of the trial was conceded. The jury, upon conflicting evidence, rendered a verdict for defendants upon the counterclaim. On appeal to the General Term of the City Court the judgment was affirmed. On appeal to the General Term of the Court of Common Pleas, held, that the judgment of affirmance of the General Term of the court below was conclusive as to the weight of evidence. The submission of the evidence in a case to the jury without objection, concedes its sufficiency for that purpose.
Documents in evidence may be taken by the jury on retiring to consider their verdict.
Plaintiff’s motion for the direction of a verdict on the cause of action alleged in his complaint or defendants’ counterclaim, or that the counterclaim be dismissed for failure of proof, was denied, but no exception' was taken. Reid, that this court was precluded from all inquiry whether there was any evidence to support the verdict in defendants’ favor.
Appeal from a judgment of the General Term of the City Court of New York, which affirmed a judgment for defendants entered upon a verdict in their favor.
Action to recover a balance of moneys alleged to have been had and received to plaintiff’s use. Defendants had judg
p. 184
ment upon their counterclaim for services rendered as attorneys and counselors at law at plaintiff’s instance and request.
James M. Smith, for plaintiff (appellant).
Oha/rles Strauss, for defendants (respondents).

Not one of the numerous exceptions taken on the trial presents error. Some were taken to rulings which were wholly discretionary, while others are valueless because the ground of the objection was not stated. Cruikshank v. Gordon, 118 N. Y. 178 . Nor was it error to allow the jury on retiring to take with them documents which were in evidence. Howland v. Willetts, 9 N. Y. 170 .

Plaintiff sued to recover $475, a balance alleged to be due him for moneys received by defendants to his use. Defendants denied the indebtedness and asserted a counterclaim for services rendered as attorneys and counselors at law at plaintiff’s instance and request. The value of those services was conceded for the purposes of the trial to be the amount claimed. None but issues of fact were involved in the trial. 1

The judgment of affirmance of the General Term of the court below is conclusive upon us as to the weight of the evidence (Rowe v. Comley, 11 Daly, 318 ; Smith v. Pryor, 16 id. 169 ; Arnstein v. Haulenbeek, Id. 382 ); the submission of the evidence to the jury without objection, conceded its sufficiency for that purpose (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628 ); and in the absence of an exception to the denial of a motion that a verdict be directed for plaintiff on the cause of action alleged in the complaint, or the counterclaim interposed by answer, or that the counterclaim be dismissed for failure of proof, we are precluded from all inquiry whether there was any evidence to support defendants’ recovery. Schwinger v. Raymond, 105 N. Y. 648 .

The judgment of the General Term of the court below should be affirmed, with costs.

Bookstaveb and Pbyob, JJ., concur.

Judgment affirmed".

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