Opinion
February, 1893.
Wandorf H. Phillips, for plaintiff (respondent).
Fellows, Gray Hartman, for defendant (appellant).
Neither of defendant's exceptions to the admission of evidence is available on appeal because the ground of the objection is not stated. Cruikshank v. Gordon, 118 N.Y. 178.
Any defect in the proof when plaintiff rested could be and was cured by evidence adduced by either party after denial of defendant's motion for dismissal of the complaint ( Schenectady Saratoga R. Co. v. Thatcher, 11 N.Y. 102, 112; Tiffany v. St. John, 65 id. 315, 317; Painton v. Northern Cent. R.R. Co., 83 id. 7); and defendant's failure to renew the motion, or to ask that a verdict be directed in his favor, conceded the sufficiency of the evidence for submission to the jury. Barrett v. Third Ave. R.R. Co., 45 N.Y. 628; Schwinger v. Raymond, 105 id. 648.
The case contains no order denying defendant's motion on the minutes for a new trial, and an exception only to the denial of such a motion, is ineffectual for any purpose. Matthews v. Meyberg, 63 N.Y. 656; Boos v. World Mut. L. Ins. Co., 64 id. 236.
Besides no appeal lies to this court from an order of the City Court refusing a new trial. Code Civ. Proc. § 3191; Wilmore v. Flack, 96 N.Y. 512; Smith v. Pryor, 16 Daly, 169.
The judgment appealed from must be affirmed, with costs.
DALY, Ch. J., and PRYOR, J., concur.
Judgment affirmed.