Trenkmann v. Schneider — 61 N.Y.S. 920

Majority

p. 920

TRENKMANN v. SCHNEIDER.

(City Court of New York, General Term.

December 27, 1899.)

Headnote

Appeal—Questions Presented for Review.

Where no exceptions are taken on the trial or to the judge's charge, and the only exception taken is to the denial of a motion for a new trial, the only question presented for review is whether the verdict is against the weight of evidence.

Appeal from trial term.

Action by August Trenkmann against Minnie L. Schneider. From a judgment entered on a verdict for defendant, plaintiff appeals. Affirmed.

For opinion on former appeal, see 57 N. Y. Supp. 652 .

Argued before FITZSIMONS, C. J., and O’DWYER and SCHUCHMAN, JJ.

Edward S. Clinch, for appellant.

Theodore Sutro, for respondent.

From the record submitted on this appeal it appears that not a single exception was taken during the course of the trial or to the judge’s charge, and the, only exception taken was to the denial of the motion for a new trial. The appellant is, therefore, restricted on this appeal to a single question of whether the verdict was against the weight of evidence. An examination of the evidence discloses a sharp conflict between the parties,—the plaintiff contending that the defendant wrongfully and without knowledge or consent of the plaintiff attached a one-inch pipe to the two-inch pipe which was connected with the boiler of the plaintiff, and took more steam than he was entitled to under his agreement; and the defendant insisting that what he did, and the steam he used, was with the consent of the plaintiff. Upon this conflict the jury have found a verdict in favor of the defendant, and we are not prepared to say that the finding is against the weight and preponderance of the evidence. In this case two juries have found for the defendant, and the trial court twice denied the plaintiff’s motion for a new trial.

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