Opinion
Argued October 21, 1937 —
Decided January 26, 1938.
Where abuse of discretion by a trial court is alleged as ground of appeal, the appellate court will always carefully examine the record to determine whether such be the fact.
On appeal from the Supreme Court.
For the plaintiff-appellant, Earl A. Merrill.
For the defendant-respondent, King Vogt and Harold A. Price.
This case was tried at the Morris Circuit and resulted in a verdict of no cause of action. Plaintiff's attorney obtained and argued a rule to show cause why the verdict should not be set aside and reserved no points of exception. Appellant insists, as in Gormley v. Gasiorowski, 110 N.J.L. 287 , that the action of the trial judge is appealable if there has been an abuse of discretion. Gaffney v. Illingsworth, 90 Id. 490; Robinson v. Payne, 99 Id. 135, 142, and Diamond Rubber Co. v. Feldstein, 112 Id. 514 . Trovato v. Capozzi, 119 Id. 149, assumes that there may be a right of appeal in cases where an abuse of discretion appears. The record in this case carefully examined is indicative of no abuse of discretion in the denial of the appellant's motion for a new trial.
The judgment under review will be affirmed, with costs.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 13.
For reversal — None.