Brown v. Levy , 68 N.Y.S. 941 ( 1901 )

Per Curiam.

At the close of the plaintiff’s case the defendant moved to dismiss the complaint and this motion was denied and exception taken. The defendant did not rest upon his exception, but proceeded to put in his proofs, and, when the case closed, did not renew Ms motion to dismiss the complaint, but on the contrary went to the jury without mating such a motion.

The legal effect of the omission of defendant, at the close of the testimony, to move either for a dismissal of the complaint or the direction of a verdict in his favor, was to consent to the submission of the case to the jury, and a concession on his part that there was a question for the jury. Pollock v. Pennsylvania Iron Works Co., 157 N. Y. 699; Hopkins v. Clark, 158 id. 299.

There is no certificate in the case on appeal that it contains all the evidence and proceedings had upon the trial.

In view of the fact that no motion to dismiss or for a direction of a verdict was made at the close of the case, and there is no certificate showing that the case on appeal contains all the evidence and proceedings had upon the trial, there remains only for our consideration on this appeal to determine whether there was error in the admission of evidence or the rulings upon the trial. The exceptions are many in number, and we have carefully examined each of them and find that they present no error calling for a reversal of the judgment.

The case was ably tried, there was a conflict of evidence, and the case was fairly and impartially submitted to the jury, and their verdict finds ample support in the evidence.

Judgment and order appealed from should be affirmed, with costs.

Present: Fitzsimons, Ch. J., Conlan and O’Dwyeb, JJ.

Judgment and order affirmed, with costs.