Wicks v. Thompson — 41 N.Y. St. Rep. 510

Majority

p. 510

Alonzo A. Wicks et al., App’lts, v. Albert D. Thompson, Resp’t.^[1]

(Court of Appeals,

Filed December 8, 1891.)

Headnote

Appeal—New trial.

Where all the evidence offered by plaintiffs was received and no evidence of defendant received to which they objected, and the record contains no exceptions, the denial of a motion for a new trial is not subject to review here:

Appeal from judgment of the supreme court, general term, second department, in favor of defendant, in action for trespass in tearing down a fence claimed to be upon plaintiffs’ land.

William G. Nicoll, for app’lts ; Wilmot M. Smith, for resp’t.

The plaintiffs brought this action to recover damages for trespass upon their real estate. The jury rendered a verdict against them. They made a motion on the minutes of the trial judge for a new trial, which was denied, and judgment upon the verdict was entered against them. Then they appealed to the general term from the order denying the new trial, and from the judgment, and the order and judgment were affirmed, and then they appealed to this court.

There is nothing for review here. The record does not contain a single exception taken by the plaintiffs. All the evidence offered by them was received, and no evidence of the defendant was received to which they objected. The charge of the judge was entirely satisfactory to the plaintiffs, and no part thereof was excepted to by them. We have many times said we can review here only questions of law raised by exceptions taken during the progress of the trial. In such a case as this, where the record contains no exceptions, the denial of the motion for a new trial is not subject to review here. Duryea v. Vosburgh, 121 N. Y., 57 ; 30 St. Rep., 683 .

The judgment should be affirmed, with costs.

All concur.