Sadlier v. Riggs — 30 N.Y. St. Rep. 429

Majority

p. 429

Annie M. Sadlier, App’lt, v. Karrick Riggs, Resp’t.^[1]

(New York Common Pleas,

General Term,

Filed April 7, 1890.)

Headnote

1. Appeal—Exception, when unavailing.

If there is any evidence tending to prove a fact assumed by the justice in his charge, an exception to the charge unaccompanied by a request that the question be submitted to the jury is unavailing, and in the absence of such request the party will be deemed to have acquiesced in the instructions to the jury.

2. Same—Leave to go to court op appeals.

Where the questions determined rest wholly on the application of elementary principles of law to the facts of the case, and the only contention s that the facts to which they were applied were not proven, leave to go to the court of appeals will not be granted.

Motion by respondent for re-argument or leave to appeal to the court of appeals.

T. G. Ennever, for app’lt; Thorndike Saunders, for resp’t.

Eespondent fails to shows that some question decisive of the case has been overlooked or that the decision is inconsistent with some statute or with a controlling decision, and no sufficient ground for re-argument is therefore shown. See rule 16, general term of the court of common pleas.

The point relied upon by respondent was fully discussed upon the argument of the appeal and was determined adversely to him. See opinion herein, general term, January, 1890, 29 N. Y. State Eep., 151.

Eespondent is further precluded from urging his exception to ■so much of the charge of the trial justice as assumed that respondent was the purchaser of the machinery in question for the reason that he failed to request a submission of that question to the jury. If there is any evidence tending to prove the fact assumed by the trial justice in his instructions to the jury, an exception to such instructions, unaccompanied by a request that the question be submitted to the jury for their determination, is unavailing, and in the absence of such request the party will be deemed to have acquiesced in the instructions. Mallory v. The Tioga Railroad Co., 3 Abb. Ct. App. Dec., 139 .

Neither does this case present any such difficult or extraordinary questions of law as would warrant this court to add to the already seriously burdened calendar of the court of appeals. The questions determined and referred to in the opinion rendered on the appeal herein rest wholly in the application of elementary principles of law to the facts of the case and respondent has not even attempted to point out any error in such determination. His only contention on this application is that the facts to which the legal principles are applied were not proven. Weil v. Eckstein, 6 N. Y. State Rep., 298; Taylor v. Arnoux, 15 id., 383; Spofford v. Rowan, 6 id., 273.

This motion should, therefore, be wholly denied, with costs.

Bookstaveb, J., concurs.