Weckman v. Ende — 25 N.Y. St. Rep. 695

Majority

p. 695

John Weckman, Resp’t, v. Charles G. Am Ende, App’lt.

(New York Superior Court, General Term,

Filed May 6, 1889.)

Headnote

Negligence—Practice—When motion to dismiss complaint properly denied.

In an action for negligence where plaintiff’s evidence makes a prima

p. 696

facie case against defendant, and the evidence of the latter does no more than raise a conflict, his motions to dismiss the complaint, made at the close of plaintiff’s case, and at the close of the evidence on both sides, are properly denied.

Appeal from a judgment in favor of plaintiff entered on the verdict of a jury at a trial term.

Talcott & Meyer, for app’lt; Frederick A. Botty, for resp’t.

The record contains no exception to any refusal to charge, and the exceptions taken to the matters charged are so general as to raise no question for review. The testimony of the plaintiff made" out a prima facie case_ of negligence on the part of the defendant, and the testimony given by and on behalf of the defendant did no more than to create a conflict which had to be submitted to the jury. The motions of the defendant for a dismissal of the complaint, made at the close of the plaintiff’s case, and at the close of the testimony on both sides, were therefore properly denied. Under all the circumstances, the verdict of the jury cannot be disturbed. The judgment and order appealed from should be affirmed, with costs.

Sedgwick, Oh. J., concurs.