Sherman v. Merz

No opinion. Present — Clarke, P. J., Smith, Page, Merrell and Greenbaum, JJ.; Greenbaum, J., dissenting.

Defendant’s failure to move for a dismissal of the complaint was in effect a concession that there was an issue of fact £pr the jury. (Seeman v. Levine, 205 N. Y. 514, 517.) The charge of the learned trial justice was clear and explicit and no exception thereto was taken by either party. There is nothing in the evidence which, in my opinion, would warrant the conclusion that the verdict was against the weight of the credible testimony. The judgment and order should be affirmed.