Boyles v. . Blankenhorn

Per Curiam. The only substantial proposition argued by the defendant is the one that there was not sufficient evidence of resistance to permit the jury to find that he committed rape upon the plaintiff. If that question were before us we should be inclined to hold that this proposition is not well founded, but that there was sufficient evidence of resistance to satisfy the rule laid down in Dean v. Raplee (145 N. Y. 319). We do not think, however, that the assignment of error made by the appellant is before us for consideration. At the close of plaintiff’s case a motion was made for a nonsuit and to dismiss the action upon the grounds which included the one now referred to, and to the denial of this motion an exception was duly taken. Thereafter the defendant introduced considerable evidence for the purpose of rebutting and disproving plaintiff’s claims. At the close of all the evidence the motion to dismiss the action was not renewed in any form or upon any ground. On the contrary, the trial court submitted to the jury all the questions of fact involved in the ' controversy, and the defendant not only did not take any exception to this submission, but he specifically requested the trial court to give to the jury special instructions for their guidance in the consideration of the proposition whether the defendant did assault the plaintiff as claimed by her. Under such circumstances it. is well settled that the defendant waived any exception which he took to the denial of his motion at the close of the plaintiff’s case, and is not in a position to argue the proposition of lack of evidence as he seeks to do. (Wangner v. Grimm, 169 N. Y. 421; Sigua Iron Co. v. Brown, 171 N. Y. 488, 505.) The judgment should be affirmed, with costs. Hiscock, Oh. J., Chase, Collin, Cuddebaok, Hogan and Crane, JJ., concur; Cardozo, J., concurs in result. Judgment affirmed.