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Keller v. Schwartz

93 N.Y.S. 620 Court N.Y. App. Term Decision date 1905-04-24 English

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p. 620
KELLER v. SCHWARTZ et al.
(Supreme Court, Appellate Term.
April 24, 1905.)

Headnote

1. Appeal—Issues—Method of Tbial.
Where the defendant excepted only to the exclusion of Immaterial proof tendered by him, and the return disclosed no motion to dismiss the complaint at the close of plaintiff’s case or at the conclusion of the trial, defendant, by trying the case in such manner, conceded that it involved only a question of fact.
2. Same—Findings of Fact—Evidence—Judgment.
Where, in a case involving only a question of fact, it cannot be contended that there was no evidence to sustain the findings, the judgment must be affirmed.
[Ed. Note.—For cases in point, see voL 3, Cent Dig. Appeal and Error, I 3979.]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Rose Keller against Mina Schwartz and another. Judgment for plaintiff, and defendants appeal. Affirmed.
Argued before SCOTT, P. J., and LEVENTRITT and GREEN-BAUM, JJ.
John Oscar Bell, for appellants.
Elek John Ludvigh, for respondent.

The return discloses but a single exception taken by the defendant to the exclusion of wholly immaterial proof tendered by him, and fails to show that any motion to dismiss the complaint at the close of the plaintiff’s case or at the conclusion of the trial had been made. Moreover, this court cannot consider arguments based upon exceptions claimed to have been taken, rulings claimed to have been made, and legal propositions affecting the rights of the parties, that might have been debatable, if legally presented. The defendants, in trying the case as they did, conceded that it involved only a question of fact, which was resolved in favor of plaintiff.

It cannot be successfully contended that there was no evidence to sustain the findings of fact, and hence the judgment must be affirmed. Lyons v. Thomas, 34 Misc. Rep. 175 , 68 N. Y. Supp. 802 .

Judgment affirmed, with costs.

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