94 N.Y.S. 683 | N.Y. App. Div. | 1905
Upon an appeal from a judgment the appellant can only complain of errors which are pointed out by objection and exception to the ruling made. (Ten Eyck v. Witbeck, 55 App. Div. 168; Allen v. Corn Exchange Bank, 181 N. Y. 282.) In the case of McGrath v. Home Insurance Company (88 App. Div. 153) and also in the case of Shotwell v. Dixson (163 N. Y. 43) the appeal to the Appellate Division ivas both from the judgment and from an order denying a motion for a new trial. In the McGrath case the opinion, so far as it indicates that a review may be had of errors to which exceptions were not taken upon an appeal from a judgment alone, is disapproved.
The defendant having, made no motion at the end of the case for a directed verdict cannot be heard now, upon this appeal from the judgment, to claim that there was. no evidence to submit to the' jury. (Hopkins v. Clark, 158 N. Y. 299.)
■The appellant’s sole reliance then for the reversal of this judgment must be upon exceptions taken to the reception of evidence. Two or three of those exceptions defendant’s counsel has called to our attention, to one of which we will refér. Evidence was offered by a witness, Willis, to the effect that she tripped and fell shortly before this accident upon a loose plank in this same walk near the northwest corner of the Besaw house. This evidence of the witness Willis was objected to on the ground that it appeared to be at a different place from where the plaintiff fell. An examination of the evidence, however, discloses that it is not entirely clear where plaintiff fell. Where witness fell was within a very short distance from where the plaintiff fell; if not at the precise point, and the jury were instructed by the court to give no effect to the evidence unless they found that the witness fell at the place where the plaintiff was injured. This exception presents no error which calls for a reversal of this judgment. We have examined the other exceptions argued by appellant’s counsel in his brief and find no error which calls for a reversal of the conclusion reached at Trial Term.
The judgment should, therefore, be affirmed," with costs.
Judgment unanimously affirmed, with costs.
