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Prentice v. Goodrich

36 N.Y.S. 740 Court N.Y. App. Div. Decision date 1896-01-14 English

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p. 740
PRENTICE et al. v. GOODRICH.
(Supreme Court, Appellate Division, Second Department.
January, 14, 1896.)

Headnote

1. Trial—Directing Verdict—When Proper.
It is not error to direct a verdict for plaintiff, where defendant not only does not ask that the case be submitted to the jury, but joins plaintiffs-in a request that the court dispose of the questions in the case.
2. Same—Motion to Strike out Evidence.
It is proper to refuse to strike out evidence which is directly responsive-to a question to which no objection is made.
Appeal from circuit court.
Action by W. S. P. Prentice and others, as executors, against W. W. Goodrich, as receiver, to recover rent. From a judgment entered on a verdict directed by the court in favor of plaintiffs, and. from an order denying a motion for a new trial, defendant appeals.
Affirmed.
Argued before BROWN, P. J., and PRATT, CULLEN, BARTLETT, and HATCH, JJ.
Strong, Harmon & Mathewson, for plaintiffs.
John A. Deady, for defendant.

This is an appeal from a judgment for the plaintiffs, entered on a verdict at circuit directed by the court, and from an-order denying defendant’s motion for a new trial. The action is-to recover rent of demised premises. The answer set up a counterclaim for damages to a subtenant from the plaintiffs’ entry on the-demised premises for the purpose of making repairs, against which it was alleged the plaintiffs agreed to indemnify the defendant, and also for delay and negligence in the prosecution of such repairs. There can be'but little said in disposing of this appeal. The most serious contention of the appellant is that the trial court erred in. directing a verdict, and that the case should have been sent to the-jury. The perfect answer to this claim is that, as the record shows, the defendant not only did not ask that the case he submitted to the-jury, but joined with the plaintiffs in a request that the court should dispose of the questions in the case.

The conversation with Philips, the general superintendent of the Sandersons, was competent; and further,-it was directly responsive

p. 741
to a question to which the defendant interposed no objection. The motion to strike out the testimony was, therefore, properly denied.

The judgment and order denying new trial appealed from should be affirmed, with costs.