45 Misc. 595 | N.Y. App. Term. | 1904
The state of the record precludes us from considering the verdict in the light of the weight of the evidence. There is no direct appeal from the order entered
The action was for damages for the plaintiff’s wrongful discharge from the defendant’s employ, such discharge having been distinctly averred in the verified complaint. She was the only witness called in her behalf, hut utterly failed to substantiate the fact of her discharge. -¡Neither was the fact made to appear from the testimony of any witness called for the defendant. To this defect in the proof, however, the court’s attention was in no wise directed. There was a motion for dismissal of the complaint at the close of the introduction of the evidence for both parties, but in so far as the motion was not merely formal, the ground specified did not include the insufficiency of the evidence to show the plaintiff’s discharge. Had this defect been pointed out non con-stat that it could* and would not have been obviated. Apparently the sufficiency of the evidence respecting the discharge was conceded, and the court, without further objee
The judgment should be affirmed, with costs.
Freedman, P. J., and Gildersleeve, J., concur.
Judgment affirmed, with costs.