Curtis v. Wheeler & Wilson Manufacturing Co. — 57 N.Y. St. Rep. 715

Majority

p. 715

George H. W. Curtis, App’lt, v. The Wheeler & Wilson Manufacturing Company, Resp’t.^[1]

(Court of Appeals,

Filed March 13, 1894.)

Headnote

1. Appeal—Direction op Verdict.

In the absence of an exception to the direction of a verdict, the question of its propriety may not he considered on appeal.

3. Same—What brought up.

An appeal from the judgment, where a verdict is directed and exceptions are ordered to be heard in the first instance at the general term, brings up nothing for review except questions presented by the exceptions.

Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made June 29, 1892, which overruled plaintiff’s exceptions and directed judgment in favor of defendant upon a verdict directed by the court.

The nature of the action and the facts, so far as material, are stated in the opinion.

Howard A. Sperry for app’lt; Miron Winslow for resp’t.

The plaintiff sought in this action to recover from the defendant the balance alleged to be due to him for the purchase price ot a patent sold and assigned by him to it. The allegations of the complaint are put in issue by the answer, and the defendant also alleged a counterclaim for which it prayed judgment. The action has been twice tried. Upon the first trial the plaintiff recovered a verdict, and upon appeal to the general term from the judgment entered thereon the court reversed the judgment, and granted a new trial, on the ground

p. 716

that the verdict of the jury was against the weight of evidence. The causé came to trial a second time, and during the progress of the trial the plaintiff took several exceptions to the rulings of the trial judge upon questions of evidence. At the close of all the evidence the counsel for the defendant requested the court to direct a verdict in its favor for the amount of its counterclaim, and such a verdict was directed. The plaintiff took no exception to the direction of the verdict, and the court ordered the exceptions (there being none except those above mentioned) to be heard in the first instance at the general term, and judgment was ordered for the defendant upon the verdict, and this appeal is from that judgment

We have considered the exceptions taken by the plaintiff during the progress of the trial, and it is very clear that none of them point out any error, and, indeed, none of the exceptions were orally argued before us.

The sole contention of the plaintiff’s counsel upon the argument was that a verdict ought not to have been directed, and that the case should have been submitted to the jury. There is no exception which presents that question for our consideration. The plaintiff acquiesced in the direction of a verdict. If the evidence was conflicting and the plaintiff claimed that' he had made a case for the consideration of the jury he should have taken' an exception to the direction of a verdict. He strenuously contends, however, that his position is the same as if he had taken an exception to the direction of the verdict, and calls our attention to the case of Purchase v. Matteson, 25 N. Y. 211 , as an authority for his contention. That case bears no analogy to this, and is not an authority here. There the Court directed a verdict subject to the opinion of the court at general term, and the practice there pointed out is applicable to such a case. Here no verdict was directed subject to the opinion of the court. The direction of the verdict was absolute, and the exceptions were ordered to be heard in the first instance at the general term. In such a case nothing is before the general term but the exceptions taken upon the trial • and as those exceptions were not well taken the judgment must be affirmed, with costs.

All concur.

Judgment affirmed.

Cases cited

Purchase v. Matteson 25 N. Y. 211 N.Y. p. 716