Kerber v. Niles — 48 N.Y.S. 444

Majority

p. 444

(21 Misc. Rep. 531.)

KERBER v. NILES.

(City Court of New York, General Term.

October, 1897.)

Headnote

Motion to Dismiss—Weight op Evidence.

Where an exception to the denial of a motion to dismiss was made when plaintiff rested, but was not renewed at the close of the whole case, and no motion for direction was made, a finding in favor of plaintiff will not be disturbed, as being against the weight of evidence.

Appeal from trial term.

Action by Ferdinand Kerber against Nathaniel Niles. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before SCHUCHMAN and FITZSIMONS, JJ.

H. T. Brennan, for appellant.

A. & C. Steckler, for respondent.

This is an appeal from a judgment, entered on the verdict of a jury in favor of the plaintiff, and from the order denying the defendant’s motion for a new trial. There is but one exception in the case, viz. to the denial of the motion to dismiss, when the plaintiff rested his case. The question relied on by the appelant is as to whether the verdict is against the weight of the evidence. The motion for a nonsuit was not renewed at the close of the whole case, nor was a motion for a direction made. Both parties accepted the situation with respect to submitting the case to the jury. Under a charge to which no exception was taken, the jury found for the plaintiff, and we cannot say that the finding is against the weight of the evidence. Judgment and order appealed from affirmed, with costs.

Judgment and order affirmed, with costs.

FITZSIMONS, J., concurs.