Harnett v. Garvey — 40 N.Y. Super. Ct. 96

Majority

p. 96

JOHN H. HARNETT AND OTHERS, Plaintiffs and Respondents, v. ANDREW J. GARVEY, Defendant and Appellant.

Headnote

In an appeal from a judgment only, the refusal of the court (in consequence of plaintiff’s objection thereto) to allow the jury to take with them, on retirement, for consultation, three certain bills which had been received in evidence, is not properly reviewable by the general term.

The refusal was a matter resting solely within the discretion of the court.

Before Freedman and Speir, JJ.

Decided December 6, 1875.

Appeal from judgment entered upon verdict of jury.

F. G. Smedley, of counsel for appellant.

A. H. Dailey, of counsel for respondents.

The questions raised "by the appellant arise, with one exception, upon exceptions taken in the course of the trial to the admission of evidence. After a careful examination of the whole case, I am unable to perceive that any error was committed in that respect.

The only other complaint relates to the refusal of the court, in consequence of plaintiffs objection, to allow the jury to take with them three certain bills which had been put in evidence. This was a matter resting in the discretion of the court, and the exercise of such discretion is not properly reviewable on an appeal from the judgment merely. No reason was given by defendant’s counsel why the bills should be handed to the jury, nor does it appear that the defendant has been prejudiced in any way by such refusal.

The judgment should be affirmed, with costs.

Speir, J., concurred.