McMicken v. Lawrence — 39 N.Y. Super. Ct. 540

Majority

p. 540

JAMES A. McMICKEN, et al., Plaintiffs and Respondents, v. CHARLES L. LAWRENCE, Defendant and Appellant.

Headnote

.APPEAL—PRACTICE ON.

1. An exception to the denial of a motion for a new trial on tha minutes is unavailing upon an appeal from the judgment (Gregg v. Howe, 37 N. Y. Sup'r. Ct. R. 430).

.3. Where no motion is made either for a dismissal of the complaint, or the direction of a verdict, and the case is submitted to the jury-under a charge to which no exception is taken, the review on appeal must be confined to a consideration of the questions arising on the appellant’s exceptions to the admission or the exclusion of -.evidence.

Before Monell, Ch. J., and Freedman, J.

Heard February Term, 1875;

Decided March 1, 1875.

Thomas Bracken, attorney and of counsel for appellant.

F. F. Marbury, Jr., attorney, and F. F. Marbury of counsel for respondent.

It appearing that although on the trial the defendant made a motion for a new trial and to the denial thereof excepted, but made no motion for a dismissal of the complaint or the direction of a verdict, and allowed the case to be submitted to the jury under a «charge to which no exception was taken, held on appeal from the judgment that the exceptions taken to

p. 541

the admission and exclusion of evidence being untenable, the judgment should be affirmed.

wrote for affirmance, laying down the propositions contained in the head-note.

Monell, Ch. J., concurred.