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Franken v. McAlpin

61 N.Y.S. 496 Court N.Y. City Ct. Decision date 1899-11-16 English

Delivered by FITZSIMONS,. C. J.

Contents

Majority

p. 496
FRANKEN v. McALPIN.
(City Court of New York, General Term.
November 16. 1899.)

Headnote

Appeal—Verdict—Conflicting Evidence.
A verdict for the plaintiff based on conflicting evidence will not be disturbed, where no motion was made to dismiss the complaint at the close of the evidence, and it was conceded that the issue was for the jury.
Appeal from trial term.
Action by Edgar Franken against Edwin A. McAlpin, as treasurer, etc. From a judgment for plaintiff entered on the verdict of a jury, defendant appeals. Affirmed.
Argued before FITZSIMONS, C. J., and McCARTHY and CONLAN, JJ.
Arthur Hurst, for appellant.
Oppenheim & Severance, for respondent.

We think that the procedure as to parties defendant was appropriate. Code, § 1919; Winter v. Hamm, 5 Civ. Proc. R. 194; McKane v. Adams (Sup.) N. Y. Supp. 580; and kindred cases.

The amendment allowed was in furtherance of justice (Code, § 723), and did not substantially change the plaintiff’s claim. The defendant asserted, but did not prove, surprise. Code, § 539.

The evidence in at the conclusion of the trial presented a conflict of evidence. At all events, no motion was then made to dismiss the complaint, and the defendant, by the conduct of the trial, conceded it was one for the jury. Henry Hess & Co. v. Baar, 14 Misc. Rep. 286 ; 287, 35 N. Y. Supp. 687 ; Helmuth v. Apgar, 17 Misc. Rep. 623 , 625, 40 N. Y. Supp. 651 ; Kaufman v. Canary, 21 Misc. Rep. 302 , 304, 47 N. Y. Supp. 152 ; Pollock v. Iron-Works Co., 157 N. Y. 699 , 700, 51 N. E. 979 .

The exceptions are without mérit, and the judgment and order appealed from must be affirmed, with costs. All concur.

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