Homiston v. Long Island Railroad — 28 N.Y.S. 658

Majority

p. 658

HOMISTON v. LONG ISLAND R. CO.

(Superior Court of New York City, General Term.

May 7, 1894.)

Headnote

Appeal—Review—Objections not. Raised Below.

Parts of charge to which no objections were taken will not be reviewed on appeal.

Appeal from jury term.

Action by Henry W. Homiston against the Long Island Railroad Company. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Argued before SEDGWICK, C. J., and McADAM, J.

William H. Law, for appellant.

E. B. Hinsdale, for respondent.

Upon a former trial of this action the plaintiff had a verdict, which, on appeal from the judgment entered thereon, was set aside by the general term for errors of law (see 22 N. Y. Supp. 738 ), all of which were obviated on the trial we are called upon to review. The facts, though requiring submission to the jury, appear substantially as they did upon the first trial, and we are therefore required upon this appeal to consider only the exceptions that appear upon the present record, and these seem to be without merit. The portions of the charge which might bear criticism were not excepted to, so that the trial judge had no opportunity to correct, explain, or modify the language used, as he might have done. The verdict is amply sustained by the evidence, and, according to the law of the case as settled by the court upon the first appeal, the judgment is right, and must, with the order denying the motion for a new trial, be affirmed, with costs.