Gridley v. College of St. Francis Xavier — 45 N.Y. St. Rep. 1

Majority

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William S. Gridley, Resp’t, v. The College of St. Francis Xavier, App’lt.

(Supreme Court, General Term, Second, Department,

Filed February 8, 1892.)

Headnote

Appeal—New trial.

Where the motion, for a new trial on the minutes does not specify the grounds on which it was made, and. no order is presented to furnish such, grounds, there is nothing before the appellate court for review as to such, motion.

Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial on the minutes.

George Bliss, for app’lt; Howard A. Sperry, for resp’t.

This action is brought by the assignee of John. Vosteen to recover money paid under misapprehension of facts.

The story is simple and easily told. Ann Owens had a life-estate in the land and premises known as 53 Wooster street in the city of New York, ana her daughter Ann Eliza Owens was the •owner in fee of three-fourths of the property.

On the 14th day of April, 1888, Ann Owens executed and delivered to John Vosteen a lease of the premises for five years from May 1, 1888, at a yearly rent of $950.

On the 27th day of May, 1873, Ann Eliza Owens was judicially •declared to have been an idiot from her birth, and totally incapacitated from taking care of herself or her property, and a committee of her person and estate was then appointed.

On the 1st day of July, 1890, Ann Eliza Owens executed and •delivered to the defendant a deed of conveyance of all her right, title and interest in the property.

Ann Owens died on the 29th day of July, 1890, and her daughter Ann Eliza Owens died a few days before, intestate and without children.

John J. Oody collected the rent from the tenant Vosteen for Ann Owens during her life-time, and after her death he collected the rent, for the defendant, and received $79.16 .each month from August 1, 1890, to March 1, 1891, and that is the money which the plaintiff claims to recover in this action as the assignee ■of John Vosteen, the tenant

Upon the trial the defendant raised no question respecting the validity of the inquisition which adjudged Ann Eliza Owens "to

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be an idiot, but rested the defense upon the claim that the rent was paid by Yosteen under circumstances which rendered the payment voluntary.

That question was accordingly submitted to the jury under a charge to which there was no exception, and the jury returned a verdict in favor of the plaintiff for the full amount claimed.

The defendant’s counsel then moved for a new trial on the minutes of the court without specifying any grounds for his motion, and it was denied and he excepted.

■ The case does not contain an order denying the motion for a new trial, and there is nothing to show that the case contains all the testimony.

As therefore the motion of the defendant for a new trial on the minutes specifies no ground upon which a review can proceed, and no order is presented to furnish such grounds, there is nothing before us for review so far as the motion for a new trial is concerned. Dresser v. Ins. Co., 47 Hun, 153 .

Independent of that difficulty, however, we have carefully examined the case to see if there is evidence to sustain the verdict, and we find^it fully justified and supported. The judgment and order denying the motion for a new trial should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.