Everitt v. King Co. , 216 A.D. 731 ( 1926 )

Judgment unanimously affirmed, with costs. There was no motion to dismiss upon the ground that plaintiff had not made out a cause of action, and the case was submitted to the jury on a concise charge defining the issue, as to which neither side took exception or presented any request for further instruction. The only motion to dismiss was upon the ground that the complaint failed to state a cause of action, and this motion was, we think, properly denied. There was evidence to sustain the finding of the jury on the issue submitted to them. Present — Kelly, P. J., Jayeox, Manning, Young and Kapper, JJ.