Sweetser v. Cameron — 51 N.Y. St. Rep. 856

Majority

p. 856

John H. Sweetser et al., Resp’ts, v. William L. Cameron, App’lt.

(New York Common Pleas, General Term,

Filed March 15, 1893.)

Headnote

1. Appeal — Jurisdiction of the court of common fleas on appeal from THE CITY COURT.

On appeal from an order of the general term of the city court affirming an order denying a new trial, this court has no jurisdiction to reverse on the ground that the verdict is against the weight of evidence.

2. Same.

While we have authority to reverse a judgment of the city court which appears without evidence to support it, the point must be presented by an appropriate exception on the trial.

Appeal from judgment of the general term of the city court, affirming judgment on verdict and order denying new trial.

p. 857

J. Stewart Ross, for app’lt; Kneeland, Stewart & Epstein, for resp’ts.

The learned counsel for the appellant quite misconceives the function of this court. Our appellate power in relation to the city court is identical and coincident with the revisory jurisdiction of the court of appeals over its subordinate tribunals; and so is limited to a review of errors of law suggested by appropriate exceptions. Keller v. Feldman, 49 St. Rep., 718 ; Walsh v. Schulz, 67 How., 186 ; Rowe v. Comley, 2 Civ. Pro., 424; 16 W. Dig., 343. Mistakes by the jury are bejmnd our competence to correct. Bell v. Bartholomew, 12 W. Dig., 33; McEteere v. Little, 8 Daly, 167 ; Farley v. Lyddy, id., 514.

It results, therefore, that, as to the weight of the evidence, we are concluded by the affirmance of the order denying the motion for a new trial.

Still, as a verdict without evidence involves error of law, we' may correct it; but, to the' exercise of the power, an exception presenting the question of the sufficiency of the proof to sustain the finding is an indispensable condition. Schwinger v. Raymond, 105 N. Y., 648 ; 7 St. Rep., 544 . Here was. no motion for a non-suit or for a direction; and “ however unjust the verdict, this court is powerless to give relief.”

nevertheless, we have considered the evidence with care; and our conclusion on the merits of the case is in accordance with the decision of the jury.

A critical examination of the record discovers no error by the. court of prejudice to the appellant.

Judgment affirmed, with costs.

Bischoff, J., concurs.