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Fraser v. Alpha Combined Heating & Lighting Mfg. Co.

54 N.Y.S. 1087 Court N.Y. City Ct. Decision date 1898-12-07 English

Delivered by OLCOTT, J.

Contents

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p. 1087
(25 Misc. Rep. 422.)
FRASER v. ALPHA COMBINED HEATING & LIGHTING MFG. CO.
(City Court of New York, General Term.
December 7, 1898.)

Headnote

1. Motion for New Trial—Notice of Appeal.
Notice of appeal, though purporting to be from order denying motion for new trial, as well as from the judgment, having been served before the motion was made, cannot bring up the order for review, notwithstanding the order recited that the motion was denied “with the same force and effect as if a motion * * * had been made on the minutes at the close of the trial, and denied.”
3. Sufficiency of Evidence—Waiver of Exception.
Exception to denial of motion for nonsuit at end of plaintiff’s case is waived by defendant introducing evidence, and not renewing motion to dismiss, or asking for direction of a verdict.
Appeal from trial term.
Action by Peter Fraser against the Alpha Combined Heating & .'Lighting Manufacturing Company. From a judgment for plaintiff, -defendant appeals.
Affirmed.
Argued before MCCARTHY, SOHUCHMAN, and OLCOTT, JJ.
William Sutphen, for appellant.
J. Baldwin, for respondent.

This is an appeal by the defendant from a judgment entered on May 10, 1898, on the verdict of a jury. The notice? of appeal was served on May 17, 1898, and purports to appeal from the

p. 1088
order denying the motion for a new trial, as well as from the judgment. But, in fact, no motion for a new trial was theretofore made. Such motion was not made until September 23, 1898, when an order was entered denying the motion “with the same force and effect as-if a motion for a new trial on the same grounds had been made on the minutes at the close of the trial, and denied.” The effect of this provision ,of the order cannot, we think, be properly claimed to have been-such that the notice of appeal served four months prior thereto brings this order before us for review; and, we must therefore hold that no appeal has been duly taken from this order.

So far as the appeal from the judgment herein, and the matters which it brings up for review, are concerned, our examination of the evidence offered for the plaintiff convinces us that the defendant’s motion for a nonsuit, made at the end of the plaintiff’s case, should have been granted. The plaintiff’s evidence was insufficient to prove his alleged employment by the defendant.- But instead of resting upon the exception which the defendant took to the denial of that motion, in which case that denial would have duly come before us for review, the defendant chose to introduce its defense; and, at the close of all the testimony, defendant did not renew its motion to dismiss, nor ask for the direction of a verdict. It thereby conceded that there was a question to go to the jury, and it waived the possibility of a successful appeal from the denial of the motion for a non-suit, made at the close of the plaintiff’s case. Entertaining our views about the merits of the case, we are reluctant to decide this appeal upon a technical question of practice, but the authorities do not permit us to do otherwise. Barrett v. Railroad Co., 45 N. Y. 632 ; Sullivan v. Brooks, 10 Misc. Rep. 368 , 31 N. Y. Supp. 36 ; Kaufman v. Canary, 21 Misc. Rep. 302 , 47 N. Y. Supp. 152 .

The judgment appealed from must be affirmed, with costs. All concur.

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