May v. Menton — 45 N.Y.S. 1047

Majority

p. 1047

MAY v. MENTON et al.

(City Court of New York,

General Term.

May 29, 1897.)

Headnote

Appeal—Review of Facts—Motion for New Trial.

The facts cannot be consideres on appeal from the denial of a motion for a new trial, where no order was entered denying the motion.

Appeal from special term.

Action by William M. May against Dennis J. Menton and others. There was a judgment in favor of plaintiff, and defendants appeal.

Affirmed.

Argued before CONLAN and SOHUOHMAN, JJ.

James J. Fitzgerald, for appellants.

Coffin & Smith, for respondent.

Appeal from a judgment of foreclosure of a mechanic’s lien filed by the plaintiff against the defendant Dennis J. Menton, as a contractor, against the property described in the complaint. Subsequent to the filing of this lien the defendant Menton had the same discharged by the giving of a bond pursuant to the statute in such cases made and provided, with the defendants Catherine Tewkes and Christopher J. Sullivan as sureties. The case shows that on the trial, with the consent of all the attorneys for the parties hereto, a jury was impaneled to determine and render a special verdict on the question of fact arising out of the contract, and alleged in the fourth paragraph of the complaint. The question was submitted to the jury, and they rendered a verdict for the plaintiff. At the close of the trial, defendants’ attorney moved for a new trial, which was denied, but, as no order was entered denying the motion, we cannot consider the facts on this appeal. Gibson v. Denton, 4 App. Div. 198 , 38 N. Y. Supp. 554 .

p. 1048

Ho exceptions appear to have been taken to the decision and judgment oí the court, and none taken on the trial of the action that will warrant us in disturbing the judgment, and it is therefore affirmed, with costs.

SOHUCHMAH, J., concurs.