263 A.D. 476 | N.Y. App. Div. | 1942
Defendants have appealed from a judgment of the St. Lawrence Trial Term of the Supreme Court in plaintiff’s favor for $2,500 damages and $65.25 costs in an action.for false imprisonment.
The action before the justice of the peace was founded on a promissory note and a judgment based thereon furnished no justification whatever for the issuance of process against the body. The notice attached to the summons makes the conclusion inevitable that the bank’s action was ex contractu and not ex delicto. Rule 46 of the Rules of Civil Practice provides in substance that a notice may be served in an action for the breach of a contract express or implied. There is no authorization whatever for the service of such a notice in an action sounding in tort. (Seeley v. Greene, 139 Misc. 90.)
In his charge the trial justice very correctly instructed the jury that the executions under which plaintiff was incarcerated were void and that the only issue before them was the amount of damages to which plaintiff was entitled. No other issue was submitted to the jury. At the close of the charge the attorneys for both defendants announced that they had no requests and no exceptions.
After the rendition of the verdict the attorney for defendant bank moved to set aside the verdict on the ground “ that the charge to the jury was wrong in stating that the executions were void and there was no jurisdiction to lock the defendant [plaintiff] up.” Counsel for defendant Madill alleged no such specification of error. Even if it possessed merit, which it did not, the belated objection made by the bank’s attorney presents no question for review. An exception to a charge given to the jury must be taken before the jury have returned their verdict. (Civ. Prac. Act, § 446.)
On this appeal defendant Madill contends that the court erred in submitting the case to the jury as one for assessment of damages only and that it likewise erred in the instructions regarding punitive damages. She made no such contention on the trial and she is now too late to make any such contention before us. However, we have examined the charge with care and find that it is a clear, correct and accurate expositor of the law on the question submitted.
The final point of defendant Madill is that the damages are excessive. That contention is likewise without merit. Defendant bank has filed no brief so that we cannot conjecture what reason it may have for a reversal of the judgment.
The judgment against both defendants should be affirmed, with costs.
Hill, P. J., Crapser, Bliss and Schenck, JJ., concur.
Judgment against both defendants affirmed, with costs.