Dixon v. Dixon — 12 N.Y. St. Rep. 505

Majority

p. 505

James W. Dixon, Resp’t, v. Henry W. Dixon, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 13, 1887.

Headnote

1 Judgment—Appeal prom—Questions reviewable.

Upon, an appeal from a judgment, there being no appeal from am order denying a new trial, Held, that questions of law only, could be reviewed.

2. Accounts—Balance op—Deduction op credits.

Held, That upon an action for board and attendance rendered, it was proper to charge the jury that in case they found for the defendant, they Should in adjusting the balance take out any sum which they might find from the evidence in the case to have been paid to the defendant, aside from the board.

The plaintiff brought this action to recover for board and attendance furnished to the defendant, who is his brother.

The cause was tried at the circuit, and the trial resulted in a verdict for the plaintiff, and the defendant has. appealed from the judgment. There was no motion for a new trial, and there is no appeal from any order refusing a new trial.

The appeal, therefore, brings to our consideration questions of law only, and as there was evidence sufficient to sistain the verdict, there is but one question of law to bo considered.

There was no motion for a non-suit, and no exceptions talen upon the trial.

Ihe following extract will show how the question came in tie case, and what it is :

“The-Court—Gentleman: When you adjust the .balance if you find the balance in favor of the defendant, of course you will take out of that any sum that you shall find rom the evidence in the case has been paid to the defenlant outside of this board. There are some such items. There is $200 to Tracy, and there are several other things’.’

Then, upon an intimation from the defendant’s counsel that thg last portion of the charge was not understood by him,its substance was repeated, and then the counsel said:

“We ake an exception to that.”

It will be seen that this portion of the charge was to

p. 506

control the jury if the finding was for the defendant, but as the jury found for the plaintiff, the charge had no application and no effect. Besides that, it was evidently right and laid down the true role for the deduction of credits, to which the plaintiff was entitled if the jury found for the ■defendant.

The judgment should be affirmed, with costs.