Newell v. Chapman , 74 Hun 111 ( 1893 )

MAYHAM, P. J.,

(dissenting.) This action was to recover damage for an alleged fraudulent representation of the defendant in negotiating the sale of a bond and real-estate mortgage to the plaintiff. To sustain this action, the plaintiff was required to prove representation, falsity, scienter, deception, and injury. Brackett v. Griswold, 112 N. Y. 467, 20 N. E. 376. There must be sufficient evidence to support each of these affirmative propositions.We think, the jury having found these propositions in favor of the plaintiff, that there is sufficient proof to sustain their verdict. It was the province of the jury to pass upon the conflicting evidence, and, as there is some evidence to support each of the elements essential to a recovery in this action,, the court should not set aside the verdict on the ground that it is wholly unsupported by evidence. It was not error, therefore, for the trial judge to refuse to set aside the verdict on a motion for that purpose made upon the minutes at the trial.

The defendant failed to take exceptions to what he now insists-were errors in the charge of the trial judge to the jury. If the direction of the judge in his charge was erroneous, it cannot be reviewed on appeal, except upon exceptions; and, as no exceptions were taken, we cannot review the charge, or reverse, if the same was erroneous. It is true, the defendant did except to what he claimed the judge charged; but the judge disclaimed making the statement excepted to, and we do not find the objectionable language in the charge. On the whole case we see no error for which the judgment should be reversed. Judgment affirmed, with costs.