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Keuhner v. Metropolitan Street Railway Co.

88 N.Y.S. 1055 Court N.Y. App. Term Decision date 1904-06-23 English

Decision Majority — PER CURIAM. · Dissent — MacLEAN, J. (dissenting).

Contents
p. 1055
KEUHNER v. METROPOLITAN ST. RY. CO.
(Supreme Court, Appellate Term.
June 23, 1904.)

Headnote

1. Costs—Extba Allowance—Deduction on Appeal.
Where defendant duly excepted to the granting of an extra allowance, the appellate court may modify the judgment by deducting such allowance.
MacLean, J., dissenting.
Appeal from City Court of New York, Trial Term.
Action by George F. ICeuhner against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying new trial, defendant appeals. Affirmed.
p. 1056
Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ.
Bayard H. Ames and F. Angelo Gaynor, for appellant.
Joseph Steiner, for respondent.

The case presents nothing more than the usual conflict of evidence in such cases. It was fairly submitted to the jury, and no reason appears why their verdict should be disturbed. The defendant having duly excepted to the granting of the extra allowance, the judgment must be modified by deducting the allowance. Standard Trust Company v. N. Y. C. & H. R. R. R. Co., 178 N. Y. 407 , 70 N. E. 925 .

Since the error in granting the allowance does not affect the merits, the judgment as modified will be affirmed, with costs to respondent.

I dissent on the ground that the learned judge erred in refusing the request to charge the jury that there was no evidence in the case that the conductor of the car was negligent—Monroe v. Met. St. Ry. Co., 79 App. Div. 587 , 590, 80 N. Y. Supp. 177 -—of especial importance in a cause wherein the preponderance of evidence for the plaintiff was so dubious.

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