Hyperlawhypertext legal database Jonas v. Feist 56 N.Y. Super. Ct. 578

← Cases

Jonas v. Feist

56 N.Y. Super. Ct. 578 24 Jones & S. 578 Court N.Y. Super. Ct. Decision date 1889-04-15 English

Contents

Majority

p. 578
SOLOMON JONAS, Respondent v. SIMON FEIST, Appellant.

Headnote

■New trial, motion for, is a proceeding subsequent to the trial, reviewable only by appeal.
On an appeal from a judgment entered upon the verdict of a jury, the errors arising upon exceptions taken at the trial, are the only errors that can be considered by the court. An exception to an order denying a motion for a new trial, is not available for any purpose on the appeal from the judgment. Such an order is reviewable only by an appeal from the same.
Before Truax and Dugro, JJ.
Decided April 15, 1889.
Appeal from a judgment entered upon the verdict of a jury.
Howe <6 Hummel for appellant, argued:—
That upon the evidence in the case the complaint should have been dismissed, etc., and that the verdict was against the evidence.
Jacob Marks for respondent, argued:—
That there is no question of law involved in the appeal, and that the court cannot review or consider the appeal. There is not a single exception in the case to the admission or rejection of any evidence or to any question asked of any witness; and there is not an exception to the charge of the learned judge, and no •requests to charge were submitted by defendant, and no motion was made to dismiss. The appeal taken in this action is from the judgment only. No order denying motion for a new trial was made or entered by the defendant, and no appeal is taken from any such order, and there being no questions of law or exceptions, there
p. 579
is nothing for this court to review. Where the judgment was rendered upon the verdict of a jury an appeal may be taken upon questions of law, but the appeal brings up questions of law only, and no questions of fact can be considered. Code of Civil Procedure, § 1346. Boos v. World Hut. L. I. Co., 64 N. Y. 236 ; Willis v. Weaver, 58 Ib. 681; Fitzpatrick v. Woodruff, 15 Jones & Sp. 436, 439; Baylies on New Trials and Appeals, page 335, and cases cited. To bring up the facts for review there must be an order made and entered upon a motion for a new trial, and an appeal from the order. (Ib.)
An exception to the denial of a motion upon the minutes such as was made by defendant in this case, is not available for any purpose. There must be an order made and entered and an appeal therefrom. Boos v. World Mut. L. I. Co., 64 N. Y., p. 242. Baylies on New Trials and Appeals, supra, and cases cited; Matthews v. Meyberg, 63 N. Y. 656 .

This is an appeal from a judgment entered on the verdict of a jury.

Errors of law arising on exceptions taken at the trial are therefore alone before this court for consideration.

The only exception which appears in the case is one to an order denying a motion for a new trial. Such an exception is not available for any purpose.

On trials by jury the only subjects for exceptions are rulings at the trial.

The motion for a new trial is a proceeding subsequent to the trial, and an order made on such motion is reviewable only by appeal. Boos v. World Mutual Life Ins. Co., 64 N. Y. 236 ; Thurber v. Harlem B. M. & F. R.R Co., 60 Ib. 326.

The judgment must therefore be affirmed.

Truax J., concurred.

Cases cited