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Lagville v. Interurban Street Railway Co.

85 N.Y.S. 1027 Court N.Y. App. Term Decision date 1904-01-07 English

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p. 1027
LAGVILLE v. INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term.
January 7, 1904.)

Headnote

1. Trial—Motion to Dismiss—Waiver.
Failure to renew a motion to dismiss after the evidence was all in was a concession that there were facts for the determination of the court.
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Malcolm Lagville against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.
H. A. Robinson (Wm. E. Weaver and J. Ralph Plilton, of counsel),, for appellant.
Wentworth, Lowenstein & Stein, for respondent.

The'judgment rests upon conflicting evidence. The defendant did not renew its motion to dismiss at the close of the entire case, thereby conceding that questions of fact arose for determination by the court. The judgment is challenged upon the sole ground that the plaintiff failed to make out a case upon the question of negligence. The evidence is sufficient to support the facts, as found by the trial court, and the judgment should be affirmed.

Judgment affirmed, with costs to the respondent.