Keller v. Schwartz

Appellate Terms of the Supreme Court of New York

Decided April 24, 1905

Appellate Terms of the Supreme Court of New York · decided 1905-04-24

1. Appeal—Issues—Method of Tbial. Where the defendant excepted only to the exclusion of Immaterial proof tendered by him, and the return disclosed no motion to dismiss the complaint at the close of plaintiff’s case or at the conclusion of the trial, defendant, by trying the case in such manner, conceded that it involved only a question of fact. 2. Same—Findings of Fact—Evidence—Judgment. Where, in a case involving only a question of fact, it cannot be contended that there was no evidence to sustain the findings, the judgment must be affirmed. [Ed. Note.—For cases in point, see voL 3, Cent Dig. Appeal and Error, I 3979.]

Decided 1905-04-24

PER CURIAM.

¶1The return discloses but a single exception taken by the defendant to the exclusion of wholly immaterial proof tendered by him, and fails to show that any motion to dismiss the complaint at the close of the plaintiff’s case or at the conclusion of the trial had been made. Moreover, this court cannot consider arguments based upon exceptions claimed to have been taken, rulings claimed to have been made, and legal propositions affecting the rights of the parties, that might have been debatable, if legally presented. The defendants, in trying the case as they did, conceded that it involved only a question of fact, which was resolved in favor of plaintiff.

¶2It cannot be successfully contended that there was no evidence to sustain the findings of fact, and hence the judgment must be affirmed. Lyons v. Thomas, 34 Misc. Rep. 175, 68 N. Y. Supp. 802.

¶3Judgment affirmed, with costs.