Myers v. Rosenback

All the questions which the appellant desires to present to the court of appeals were fully discussed and disposed of upon authority in the opinion at general term, and there seems to be no good reason, within the uniform adjudication in this court, for sending this case to the court of appeals. The point made on this motion that the error in the reception of evidence on the counterclaim may have influenced the jury on the merits of the action cannot be considered, as it was not presented on the appeal by any exception taken at the trial. The plaintiff’s motions at the close of the case for a verdict in his favor on the whole case, and on the counterclaim, and on the question of damages, were united, to the denial of all which but one exception was taken; and as plaintiff was not entitled to the granting of all of such motions, the single exception taken does not present the particular error complained of. Bosley v. Machine Co., 123 N. Y. 550-557, 25 N. E. 990. That the decision of the general term may result in the defendant being compelled to pay costs in the numerous actions he has brought for the installments of rent he claimed, and which such decision may prevent his recovering, is not ground for granting leave to appeal.

Motion denied, with $10 costs.