Gaylord v. Gallagher , 1 Misc. 328 ( 1892 )

Bischoff, J.

But two exceptions appear in the case,—one, to the denial of defendant’s motion for a nonsuit when plaintiffs rested; the other, to the denial of defendant’s motion to set the verdict aside, and order a new trial. Neither of these exceptions, however, proves, upon examination, to be available to defendant for the purpose of reversing the judgment and order appealed from. The motion for a nonsuit was founded on the alleged insufficiency of the evidence to sustain the cause of action; but any defect in the proof, when plaintiffs rested, was curable by evidence introduced on behalf of either party after denial of defendant’s motion. Road Co. v. Thatcher, 11 N. Y. 102, 112; Tiffany v. St. John, 65 N. Y. 314; Painton v. Railway Co., 83 N. Y. 7.

When both sides rested, defendant did not renew his motion for a nonsuit, nor ask to have a verdict directed in his favor. The sufficiency of the evidence to warrant its submission to the jury was thus conceded. Barrett v. Railroad Co., 45 N. Y. 628, 632; Rowe v. Stevens, 44 How. Pr. 10; St. John v. Skinner, Id. 198; Casper v. O'Brien, 47 How. Pr. 80; Schwinger v. Raymond, 105 N. Y. 648, 11 N. E. Rep. 952. And appellant has precluded us from inquiry whether the verdict is against the weight of the evidence by omitting from the ease the statement that all the evidence bearing upon the questions in controversy is thereby presented. Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. Rep. 1022; Arnstein v. Haulenbeek, (Com. Pl. N. Y.) 11 N. Y. Supp. 701, and cases cited. The judgment and order appealed from must be affirmed, with costs. All concur.