Tallman v. American Express Co.

This action originated in Justice’s Court, where judgment was rendered for the plaintiff. It -was taken into the County Court of St. Lawrence county, on appeal, where it was again tried before the court and jury with like result; and the case is now in this court, on appeal from the judgment there rendered on the verdict of the jury. No motion was made in the County Court for a new trial on the case and exceptions, and a motion is now made to dismiss the appeal for that reason.

The • decisions on the question here presented, have not been uniform. (42 Barb., 70; 48 id., 339; 27 How., 208; 28 id., 150; 29 id., 68; 54 Barb., 34 ; 27 How., 385 ; 30 id., 4 ; 2 N. Y. S. C., 445; id., 672.) The last two decisions, in the fourth department, were intended to settle the practice, and we think we should concur with them with a view to harmony, if for no other reason; not *378intending, however, to intimate any doubt, on our part, of the correctness of the rule there declared. This rule has no application to cases originating in the County Court, as will be seen by the decision in Beatty v. Myers (6 N. Y. S. C. [T. & C.], 456; S. C., 11 [4 Hun], 266.)

The appeal herein must be dismissed, for the reason that no motion was made for a new trial in the County Court.

Motion granted.

Appeal dismissed, with ten dollars costs and printing.