Gaylord v. Gallagher — 48 N.Y. St. Rep. 704

Majority

p. 704

Don A. Gaylord et al., Resp’ts, v. Patrick Gallagher, App’lt.

(New York Common Pleas, General Term,

Filed November 7, 1892.)

Headnote

1. Nonsuit—Motion for—Failure to renew at close an admission of EVIDENCE SUFFICIENT TO SUBMIT.

A failure to renew a motion for nonsuit on the ground of alleged insufficiency of the evidence to sustain the cause of action when both sides rested, or to ask the direction of a verdict, is a concession that the evidence was sufficient to warrant its submission to the jury.

2. Appeal—Case.

An appellate court is precluded from inquiry whether the verdict appealed from is against the weight of evidence, where the statement is omitted from the case that all the evidence bearing upon the questions in controversy is thereby presented.

p. 705

Appeal from a judgment for plaintiffs entered upon the verdict of a jury, and an order denying defendant’s motion for a new trial. Action to recover upon two certain contracts for the sale and delivery of builders’ materials, the answer denying performance by plaintiffs, and the value of the materials admitted to have been delivered, besides interposing four several counterclaims for damages alleged to have been sustained by defendant from nonperformance of the agreements mentioned in the complaint on plaintiffs’ part.

John E. Eustis, for resp’ts; Henry H. Brann, for app’lt.

But two exceptions appear in the case, one to the denial of defendant’s motion for a non-suit when plaintiffs rested, the other to the denial of defendant’s motion to set the verdict aside and order a new trial.

Neither of these exceptions, however, proves upon examination to be available to defendant for the purpose of reversing the judgment and order appealed from. The motion for a nonsuit was founded on the alleged insufficiency of the evidence to sustain the cause of action, but any defect in the proof, when plaintiffs rested, was curable by evidence introduced on behalf of either party after denial of defendant’s motion. S. & S. Plank Road Co. v. Thatcher, 11 N. Y., 102 , 112 ; Tiffany v. St. John, 65 id., 314; Painton v. Northern Cent. Railway Co., 83 id., 7.

When both sides rested, defendant did not renew his motion for a nonsuit, nor ask to have a verdict directed in his favor. The sufficiency of the evidence to warrant its submission to the jury was thus conceded. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628 , 632; Rowe v. Stevens, 44 How. Pr., 10 ; St. John v. Skinner, id., 198; Caspar v. O'Brien, 47 id., 80; Schwinger v. Raymond, 105 N. Y., 648 ; 7 St. Rep., 544 .

And appellant has precluded us from inquiry whether the verdict is against the weight of the evidence by omitting from the case the statement that all the evidence bearing upon the questions in controversy is thereby presented. Aldridge v. Aldridge, 120 N. Y., 615 ; 31 St. Rep., 948 ; Arnstein v. Haulenbeek, 16 Daly, 382 ; 34 St. Rep., 297 , and cases cited.

The judgment and order appealed from must be affirmed, with costs.

Pryor and Giegerich, JJ., concur.