Smith v. Simmons — 49 N.Y. St. Rep. 302

Majority

p. 302

Charles A. Smith, App’lt, v. Andrew D. Simmons, Resp’t.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

New tbial—Absence op exceptions.

Where no valid exception was taken during the progress of the trial, nor to the direction of a verdict, a denial of a motion for a new trial is proper and the judgment should be affirmed.

Appeal from judgment entered upon verdict for defendant directed by the court.

Action for damages caused by the death of plaintiff’s horse which fell into an excavation made on defendant’s premises, where said horse was pasturing under an agreement with the defendant.

Spencer & Banker (Edgar A. Spencer, of counsel), for app’lt; Smith & Nellis (Andrew J. Nellis, of counsel), for resp’t.

No exceptions were taken during the trial that should cause a reversal of the judgment. After the parties had rested defendant moved that the court direct a verdict against plaintiff in his favor of no cause of action. Plaintiff asked to go to the jury upon the questions involved in the case. The court denied the plaintiff's motion and directed a verdict for the defendant.

To this ruling of the court and direction no exception was taken by the plaintiff. The plaintiff then moved for a new trial upon all the grounds specified in § 999 of the Civil Code, which motion was denied, plaintiff excepting.

Inasmuch as no valid exception was taken by the plaintiff during the progress of the trial, nor to the direction of the court to the jury to render a verdict in favor of defendant, the motion for a new trial was properly denied. But if otherwise, as no order was entered denying the motion, we cannot consider the propriety of the ruling of the court. The question is not before us. The only way that the exception from the order denying a new trial could be considered by us would be on appeal from the order had one been entered. There is no order, and hence no appeal from the ruling of the court denying the motion.

All that is before us, therefore, is the appeal from the judgment. And no exception being taken to the direction for a verdict or other material exception to the rulings of the court upon the trial, and as, under the circumstances, we cannot consider the case upon its merits, it follows that the judgment must be affirmed, with costs. See Jacobson v. Cornelius, 52 Hun, 377 —378; 24 St. Rep., 360 ; Third Ave. R. r. Co. v. Ebling et al., 100 N. Y., 98 ; Ainley v. Manhattan R. Co., 47 Hun, 207 ; 13 St. Rep., 557 .

Mayham, P. J., and Herrick, J., concur.