Weckmann v. Am Ende — 5 N.Y.S. 567

Majority

p. 567

Weckmann v. Am Ende.

(Superior Court of New York City,

General Term.

May 6, 1889.)

Headnote

Practice—Dismissal of Complaint.

Where plaintiff’s evidence makes a prima facie case of negligence on the part of defendant, and the latter’s evidence does no more than raise a conflict, his motions to dismiss the complaint, made at the close of plaintiff’s case, and at the close of the testimony on hath sides, are properly denied.

Appeal from jury term.

Action by John Weckmann against Charles G. Am Ende. Judgment on verdict for plaintiff, and defendant appeals.

Argued before Sedgwick, C. J., and Freedman, J.

Talcott & Meyer, for appellant. Frederick A. Botty, for respondent.

The record contains no exception to any refusal to charge, and the exceptions taken to the matters charged are so general as to raise no question for review. The testimony of the plaintiff made out a prima facie case of negligence on the part of the defendant, and the testimony given by and on behalf of the defendant did no more than to create a conflict which had to be submitted to the jury. The motions of the defendant for a dismissal of the complaint, made at the close of plaintiff’s ease and at the close of the testimony on both sides, were therefore properly denied. Under all the circumstances the verdict of the jury cannot be disturbed. The judgment and order appealed from should be affirmed, with costs.

Sedgwick, C. J., concurs.