Wiley v. Long Island Railroad

This action was first brought to trial at the circuit, and the complaint dismissed. Upon appeal to the general term the judgment was reversed, and a new trial granted. 27 N. Y. Supp. 722 . The defendant then gave the usual stipulation for judgment absolute against it in case of an affirmance, and appealed to the court of appeals, where the judgment of the general term was affirmed, with costs. 39 N. E. 859 . The case then went back to the circuit to have the damages assessed, and there was a verdict in plaintiff’s favor. It does not appear from the record before us that any motion for an allowance was made" at the circuit. Thereafter the plaintiff served a notice upon the defendant that upon all the evidence and proceedings in the action, and upon affidavit of plaintiff’s attorney, she would move at special term to set aside the verdict, as inadequate, and, in case the verdict was not set aside, for an extra allowance in addition to costs. After hearing the parties the court refused to set aside the verdict, but granted to the plaintiff an allowance of 5 per cent, upon the amount of the verdict. The defendant has appealed from so much of the order as grants the allowance, upon the ground that the motion for an allowance should have been made to the judge who presided at the trial when the verdict was rendered. We agree with the appellant’s counsel that" motions of this character should be made to the court before which the trial is had. Such is the plain provision Of the general rules of practice (rule 44), and that rule has been uniformly construed to require application for extra allowance to be made to the justice who presided at the trial of the cause. Hun v. Salter, 24 Hun, 640 . The objection, however, is not one that goes to the jurisdiction of the court, but is a rule of practice, solely, and could be waived by the defendant. We do not find in the appeal papers that the objection now made by the appellant was taken at the special term, and, not having been taken at the argument, the appellant must be deemed to have waived it. When a party desires to object to the power of the court to hear a motion, or to the regularity of the proceedings of the moving party, he must seasonably take his objection, and, if it is overruled, see that the ruling of the court appears in the record. Otherwise all such objections will, upon appeal, be deemqd to have been waived. Cowenhoven v. Ball, 118 N. Y. 231 , 23 N. E. 470 . The order must be affirmed, with costs.