Hyperlawhypertext legal database Meyrich v. Shainowsky 62 N.Y.S. 432

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Meyrich v. Shainowsky

62 N.Y.S. 432 Court N.Y. City Ct. Decision date 1900-01-26 English

Delivered by HASCALL, J.

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p. 432
MEYRICH v. SHAINOWSKY.
(City Court of New York, General Term.
January 26, 1900.)

Headnote

Bills and Notes—Trial—Motion to Dismiss—New Trial.
Where, in an action on notes, the holder proved title, possession, and the amount due, and rested, and defendant made no motion to dismiss, and at the close of .all the testimony did not ask for the direction' of a verdict in his favor, he was not entitled to a new trial on the minutes, since by his conduct he conceded that there was sufficient evidence to warrant a submission of the disputed facts to the jury.
Appeal from trial term.
Action Tby one Meyrick against one Shainowsky. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.
Affirmed.
Argued before O’DWYER, P. J., and ELASCALL, J.
L. Levy, for appellant.
N. Alienikoff, for respondent.

This is an appeal from a judgment upon a verdict, and an order denying motion for new trial. The cause of action arises upon two promissory notes transferred to plaintiff by payee after maturity. No defense other than payment is pleaded. Plaintiff proved title, possession, and amount due, and rested his case. Defendant made no motion to dismiss, nor at the close of all the testimony did he ask for a direction in his favor, but now founds Ms rights on appeal, after verdict against him, upon motion for a new trial upon the minutes, etc. It may be that, had appellant made the proper motions at the trial, he would have obtained relief. But, having elected to go to the jury, and failed to make such motions, we are constrained to hold that he conceded that there was sufficient evidence to warrant a submission as to disputed facts, and may not now have relief upon such failure. Railway Co. v. Daniels, 152 U. S. 684 , 14 Sup. Ct. 756 , 38 L. Ed. 597 ; Hopkins v. Clark, 158 N. Y. 299 , 53 N. E. 27 . The court, after verdict upon material points where the evidence was conflicting, properly denied the motion for a new trial, and there are no exceptions to the charge to the jury.

The judgment and order appealed from are affirmed, with costs and disbursements.

O’DWYER, J., concurs.

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