Chambers v. Goldklang — 60 N.Y.S. 998

Majority

p. 998

CHAMBERS v. GOLDKLANG.

(City Court of New York,

General Term.

November 21, 1899.)

Headnote

1. Direction of Verdict.

Where there is no serious conflict in the evidence, unless it is between the defeated party and one of his own witnesses, there is no error in a direction in favor of the party apparently entitled to a verdict.

2. Same—Motion for New Trial.

Without a request to go to the jury, and a refusal, and an exception to the direction of a verdict, a motion for a new trial is ineffectual for any purpose.

Appeal from trial term.

Action by Newton W. Chambers against Julius Goldklang. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

Affirmed.

Argued before FITZSB10NS, C. J., and McOABTHY and CON-LAN, JJ.

Abraham H. Sarasohn, for appellant.

Wyatt & Trimble, for respondent.

This is an appeal from a judgment entered upon a verdict directed by the court at trial term, and from an order denying a motion for a new trial. The action was brought to recover commissions as broker on obtaining a loan of $15,000 on defendant’s property. A careful reading of the evidence adduced upon the trial fails to convince us that any error was committed in a direction of a verdict in favor of the plaintiff. There does not appear any serious conflict of any kind, unless it be between the defendant and one of Ms own witnesses; and, taking either view of the case, there was nothing whereon a jury could be called upon to deliberate. The result to be ascertained was a simple computation of what was 1 per cent, on $>15,000, and what was the legal interest on the ascertained sum for a given time. The defendant made no request to be permitted to go to the jury, and a subsequent motion for a new trial was ineffectual

p. 999

for any purpose without the request, or a refusal, and an exception to the charge itself.

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