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Myers v. Rosenback

70 N.Y. St. Rep. 766 Court N.Y.C.P. Decision date 1895-12-02 English

Contents

Majority

p. 766
Frederick S. Myers, App’lt, v. Moses S. Rosenback, Resp’t.
(New York Common Pleas, General Term,
Filed December 2, 1895.)

Headnote

1. Appeal—General exception.
Where the plaintiff’s motion at the close of the case for a verdict in his-favor on the whole case, and on the counterclaim, and on the question of damages, are united, to the denial of which but one exception is taken, the single exception does not present an error in any one of the motions unless the plaintiff is entitled to the granting of all such motions.
2. Appeal—Leave to go to the court of appeals.
That the decision of the general term may result in the defendant being compelled to pay costs in the numerous actions which he has brought, is not ground for granting leave to appeal to the court of appeals.
Appeal from a judgment to the general term óf the city court, affirming a judgment' in favor of defendant. Also motion for leave to appeal to the court of appeals.
Hamilton R. 'Squier, for app’lt; Horwitz & Hershfield (Otto Bbrwitz, of counsel), for def’t.

All the questions which the appellant desires fopresent to the court of appeals were fully discussed and disposed of upon authority in the opinion of the general term, and there-seems to be no good reason, within the uniform adjudication in this court, for sending this case to the court of appeals. The-point made on this motion that the error in the reception of evidence on the counterclaim may have influenced the jury on the merits of the action cannot be considered, as1 it -was not presented-on the appeal'by any exception taken at the trial. The plaintiff’s motions at the close of the case for a verdict in his favor on the whole case, and on the counterclaim, and on the question of damages, were united, to the denial of all which but one exception was taken ; and as plaintiff was not entitled to the granting of all of such motions, the single exception taken does not present the particular error complained of. Bosley v. Nat. Machine Co., 123 N. Y. 550 -557; 34 St. Rep. 277 . That the decision of the general term may result in the defendant being compelled to pay costs in the numerous actions he has brought for the installments of rent he claimed, and which such decision may prevent his recovering, is not ground for granting leave to appeal.

Motion denied, with,$10 costs. -

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