Dearing v. Independent Union Telephone Co. — 129 N.Y.S. 13

Majority

p. 13

DEARING v. INDEPENDENT UNION TELEPHONE CO.

(Supreme Court, Appellate Division, Fourth Department.

May 3, 1911.)

Headnote

-Appeal and Bbbob (§ 265^[1] )—Questions Review able.

Where the court made findings of fact by consent, and no exceptions thereto were filed, as provided by Code Civ. Proc. § 994, the question of defendant’s liability, raised by motions for a nonsuit and the direction of a verdict, would not be considered on appeal.

[Ed. Nóte.—For other cases, see Appeal and Error, Cent. Dig. §§ 1536-1551; Dec. Dig. § 265.^[1] ]

Appeal from Trial Term, Erie County.

Action by Frank T. Bearing against the Independent Union Telephone Company. From a judgment for plaintiff, and from an order denying defendant’s motion to set aside the verdict and grant a new trial, defendant appeals.

Affirmed.

Argued before. McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Corden T. Hackett, for appellant.

Robert W. Farrington, for respondent.

The judgment from which Jthe defendant appeals is for two penalties, of $100 each, recovered under the provisions of

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section 103 of the transportation corporation law (Consol. L,aws 1909, c. 63), for refusing to transmit telephone messages. The defendant contends that, upon the undisputed facts and findings contained in the decision, the defendant is not liable for the forfeiture imposed by the statute.

Whether that is so or not, I think the defendant is not in a position to raise that question. Motions for a nonsuit ánd the direction of a verdict in'its favor were made on behalf of the defendant, but were not ruled on by the trial court, as both parties consented that the jury be discharged, and the case was submitted for decision to the judge, who thereafter made his decision in writing, making findings as required by Code of Civil Procedure, §§ 1010, 1023; but no exceptions thereto were filed, so far as the record discloses. Under such circumstances, I think the question cannot be reviewed here on this appeal. Code of Civil Procedure, •§ 994; Frederick v. City of Johnstown, 47 App. Div. 221 , 62 N. Y. Supp. 66 .

While a motion for a new trial was made and entertained on the judge’s minutes, under section 999 of the Code of Civil Procedure, that does not aid the defendant, as that section applies only to a trial by jury, and this was a trial by the court. Waydell v. Adams, 23 App. Div. 508 , 48 N. Y. Supp. 635 .

The judgment and order must therefore be affirmed, with costs. All , concur.

Cases cited

Frederick v. City of Johnstown 47 App. Div. 221 N.Y. App. Div. 1900-01-08 p. 14