Wood v. Franklyn

—The plaintiff sues to recover from the defendant the sum of $1,548.24, with interest, for work, labor and services. The defendant, in effect, pleaded a general denial.

The case finally came to trial, and was contested. At the close of the case the defendant moved to dismiss the complaint, which was denied, and thereupon the court directed a verdict for the plaintiff for $2,198.40, to which direction the defendant excepted. No request was made by the defendant to submit the facts to the jury, and both parties treated the case as involving questions of law. From this judgment the defendant now appeals. The defendant’s failure, after the motion to dismiss was denied, to request the court to submit the questions of fact to the jury, is fatal, if there be any evidence to sustain the verdict. I have examined the case carefully, and think there was sufficient evidence.

In Kirtz v. Peck, 113 N. Y., 226 ; 22 N. Y. State Rep., 733, Ruger, Ch. J., says: “ Neither party asked to go the jury upon any question of fact, and if, therefore, the evidence presented any such question, the court was authorized by the mode in which the case was tried to find thereon, and if there was evidence tó sustain the finding, it is conclusive upon the parties on this appeal. By requesting the court to determine the case as one of law, the party waived his right, if any, to go to the jury upon question of fact, and submitted all questions involved to the determination of the court.”

It is well settled that where the defendant moves for a nonsuit, or rests his defense upon questions of law, and does not request to go to the jury, and his motion is denied on the law held adversely to him, he is estopped from raising the point upon appeal that there were questions of fact which should have been passed upon by the jury. See Dillon v. Cockcroft, 90 N. Y., 649 ; Provost McEnroe, 102 N. Y., 650 .

For these reasons the judgment should be affirmed, with costs.

Fitzsimons, J., concurs.