Hilgert v. Black — 90 N.Y.S. 1067

Majority

p. 1067

HILGERT v. BLACK.

(Supreme Court, Appellate Term.

December 7, 1904.)

Headnote

1. Appeal—Review oe Evidence—Certificate as to Evidence.

Where a case on appeal from the City Court does not affirmatively show, by way of certificate or stipulation, that it contains all the evidence, the Appellate Term will not inquire whether the verdict is contrary to the evidence or against the weight of the evidence.

2. Tbial—Practice—Motion to Dismiss.

A motion for dismissal of the complaint upon the ground that the testimony had not shown a fair preponderance in favor of plaintiff, made by defendant’s counsel at the close of the whole case, impliedly conceded that .the case was for the jury.

Appeal from City Court of New York, Special Term.

Action by Matthew Hilgert against Archibald P. Black. From a judgment of the City Court for plaintiff, and from an order denying a new trial, defendant appeals.

Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and GIEDERSLEEVE, JJ.

John M. Gardner and M. V. Dorney, for appellant.

Wales F. Severance and Henry Hoelljes, for respondent.

The stipulation in this case waiving certification by the clerk as to the particulars therein recited does not include a waiver of a certificate or other statement that the case as ' filed contains all the evidence adduced at the trial. In the absence of such a certificate or statement, this court will not inquire whether the verdict is contrary to the evidence or against the weight of evidence. See Empire Trust Co. v. Devlin (decided at the present term of this court) 90 N. Y. Supp. 1066 , and authorities there cited.

Defendant’s exceptions are untenable. The case was one for the jury. This was impliedly conceded by defendant’s counsel when at the close of the whole case he moved for a dismissal of the complaint upon the ground that the testimony had not shown a fair preponderance in favor of the plaintiff. Moreover, the case was submitted to the jury under a charge to which no exception was taken.

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