Majority
p. 579David H. Carroll, Resp’t, v. Ann T. O’Shea, App’lt.[1] (New York Common Pleas, General Term, Filed February 6, 1893.)
Headnote
1. Appeal — Exceptions.An exception to the admission of evidence is not available on appeal where the ground of the objection thereto was not stated.
2. Dismissal qe complaint — Sufficiency oe evidence.
Any defect in the proof at the time of the denial of a motion to dismiss the complaint on plaintiff’s evidence may be cured by evidence adduced by either party thereafter, and a failure to renew the motion is a concession of the sufficiency of the evidence.
3. Appeal — New trial.
No appeal lies to the common pleas from an order of the city court refusing a new trial.
Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff which was entered upon the verdict of a jury.
Action to recover broker’s commissions on the sale of real estate.
Frederick Hemming ( Waldorf H. Phillips, of counsel), for resp’t; Fellows, Gray & Hartman, for app’lts.
Neither of defendant’s exceptions to the admission of evidence is available on appeal, because the ground of the objection is not stated. Cruikshank v. Gordon, 118 N. Y., 178 ; 28 St. Rep., 784 .
p. 580
Any defect in the proof when plaintiff rested could be and was cured by evidence adduced by either party after denial of defendant’s motion for dismissal of the complaint, S. & S. P. R. Co. v. Thatcher, 11 N. Y., 102 , 112; Tiffany v. St. John, 65 id., 315, 317; Painton v. Northern Cent. R. Co., 83 id., 7; and defendant’s failure to renew the motion, or to ask that a verdict be directed in his favor, conceded the sufficiency of the evidence for submission to the jury. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628 ; Schwinger v. Raymond, 105 N. Y., 648 ; 7 St. Rep., 544 .
The case contains no order denying defendant’s motion on the minutes for a new trial, and an exception only to the denial of such a motion is ineffectual for any purpose. Matthews v. Mayberg, 63 N. Y., 656 ; Boos v. World Mut. L. Ins. Co., 64 id., 236.
Besides, no appeal lies to this court from an order of the city court refusing a new trial. Code Civ. Pro., § 3191; Wilmore v. Flack, 96 N. Y., 512 ; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553 .
The judgment appealed from must be affirmed, with costs.
Daly, Ch. J., and Pryor, J., concur.