Paige v. Chedsey — 53 N.Y. St. Rep. 190

Majority

p. 190

David S. Paige, App’lt, v. Nathan A. Chedsey et al., Resp’ts.^[1]

(New York Common Pleas, General Term,

Filed June 5, 1893.)

Headnote

1. Appeal—Exceptions.

Exceptions taken to rulings which are wholly discretionary, or where the ground of objection was not stated, present no error.

2. Trial—Documentary evidence may be taken to jury room.

It is not error to allow the jury on retiring to take with them documents-which are in evidence.

8. Appeal—From city court—Weight oe evidence.

A judgment of affirmance of the general term of the city court is conclusive as to the weight of evidence; and in the absence of an exception to the denial of a motion that a verdict be directed for plaintiff on the cause of action alleged, or the counterclaim, or that the counterclaim be dismissed for failure of proof, the common pleas is precluded from all inquiry whether there was any evidence to support a recovery by defendant.

Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for defendants entered upon a verdict in their favor.

Action to recover a balance of moneys alleged to have been had ' and received to plaintiff’s use. Defendants had judgment upon their counterclaim for services rendered as attorneys and counselors at law at plaintiff’s instance and request.

James M. Smith, for app’lt; Charles Strauss, for resp’ts.

Not one of the numerous exceptions taken on the trial presents error. Some were taken to rulings which were wholly discretionary, while others are valueless because the ground of the objection was not stated. Cruikshank v. Gordon, 118 N. Y., 178 ; 28 St. Rep., 784 . Nor was it error to allow the jury, on retiring, to take with them documents which were in evidence. Howland v. Willetts, 9 N. Y., 170 .

Plaintiff sued to recover four hundred and seventy-five dollars, a balance alleged to be due him for moneys received by defendants to his use. Defendants denied the indebtedness and asserted a counterclaim for services rendered as attorneys and counselors at law at plaintiff's instance and request. The value of those services was conceded for the purposes of the trial to be the amount claimed. None but issues of fact were involved in the trial.

The judgment of affirmance of the general term of the court below is conclusive upon us as to the weight of the evidence, Rowe v. Comley, 11 Daly, 318 ; Smith v. Pryor, 16 id., 169; 30 St. Rep., 553 ; Arnstein v. Haulenleek, 16 Daly, 382 ; 84 St. Rep., 297 ; the submission of the evidence to the jury without objection conceded its sufficiency for that purpose, Barrett v. Third Ave. R. R. Co., 45 N. Y., 628 ; and in the absence of an exception to the denial of a motion that a verdict be directed for plaintiff on the cause of action alleged in the complaint or the counterclaim interposed by answer, or that the counterclaim be dismissed for failure of proof, we are precluded from all inquiry whether there was any evidence to support defendant’s recovery. Schwinger v. Raymond, 105 N. Y., 643 ; 7 St. Rep., 544 .

Judgment of the general term of the court below affirmed, with costs.

Bookstaver and Pryor, JJ., concur.