Exner v. O'Gara , 72 N.Y.S. 1101 ( 1901 )

O’Dwyer, J.

No order denying the motion for new trial appears in the appeal book, and the appeal must, therefore, be determined solely upon defendant’s exceptions taken during the trial, and the only exception called to our attention is that to .the ruling upon the question addressed to the witness Boyle. The accident, occurred on the 7th day of. August, 189'9, and was caused by the defective condition of the oil cloth on the stairway in question,, and this witness testified that he went with the defendant in September, 1899, the date'he did not know, and examined the stairs from the top to the bottom. The record shows the following proceedings: “ Q. What did you find as the result of your examination as to the stairway leading from the second to the third story, as to the condition of .the oil cloth? [Objected to; objection sustained; exception.] "A. I don’t.know when the oil cloth was put down. It appeared apparently new.”

The defendant’s liability was to be determined by the condition of the oil cloth previous to and at the time of the accident. Its condition in September, long after the accident, had no relevancy upon the issue, and the ruling of the court was right. There is nothing in the case to show that the oil cloth was in the same condition in September, 1899, as it was on August 7, 1899', or previous thereto. Furthermore, it appears from the testimony of this "witness that at the time he examined this oil cloth it appeared apparently new.

The exception is without merit, and the judgment must he affirmed, with costs.

Conlan and Hascall, JJ., concur.

Judgment affirmed, with costs.