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Prager v. Schafuss

99 N.Y.S. 840 Court N.Y. App. Term Decision date 1906-06-28 English

Delivered by LEVENTRITT, J.

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p. 840
PRAGER v. SCHAFUSS.
(Supreme Court, Appellate Term.
June 28, 1906.)

Headnote

Appeal and Error—Review—Motion for New Trial.
An omission to appeal from the order denying a motion for a new trial precludes the Appellate Term from weighing the evidence, and confines it to a consideration of exceptions.
[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1765-1767.]
Appeal from City Court of New York, Special Term.
Action by Adolph Prager against Theodore C. iSchafuss, doing business under the name of F. L. Schafuss & Co. From a judgment in favor of plaintiff, defendant appeals.
Affirmed.
Argued before GILDERSLEEVE, LEVENTRITT, and McCALL, JJ.
George F. Fleming, for appellant.
Alfred & Charles Steckler, for respondent.

The only ground of appeal presented is that the verdict of the jury is against the weight of evidence. Not only does the record show that such is not the fact, but, even if it were, the defendant is not in a position to raise the question. By his omission to appeal from the order denying the motion for a new trial, he precludes us from weighing the evidence, and confines us to a consideration of exceptions, of which the record is barren. Third Ave. R. R. Co. v. Ebling, 100 N. Y. 98 , 2 N. E. 878 ; Mollineaux v. Clapp, 99 App. Div. 543 , 90 N. Y. Supp. 880 ; Zeisloft v. Blackburne Co., 45 Misc. Rep. 595 , 91 N. Y. Supp. 8 .

Judgment affirmed, with costs to the respondent. All concur.

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