Collier v. . Collins

Vann, J. At the close of the evidence for the plaintiff the defendant moved to dismiss the complaint upon the ground that no cause of action had been established against him. The motion was granted, but the plaintiff took no exception, and thus apparently acquiesced in that disposition of the case. (Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437, 441.) Her motion for a new trial, made without specifying any ground therefor so far as appears, was denied and she excepted, but no order was entered and no foundation laid for an appeal therefrom. Her appeal to the Appellate Division was from the judgment only. She made no attempt to appeal from an order, whether entered or not, denying her motion for a new trial. Her notice of appeal is silent upon the subject, as she asked a review of nothing but the judgment. While a different rule prevails in actions tried by the court without a jury, or by a referee, when the trial is before a jury an appeal from the judgment brings up for review by the Appellate Division questions of law only arising upon exceptions taken during the trial. (Thurber v. Harlem Bridge, M & F. R. R. Co., 60 N. Y. 326, 328 ; Boos v. World Mutual Life Insurance Co., 64 N. Y. 236, 242; Baylies on Appeals, 308.) Such an appeal does not permit that court to pass upon the weight of evidence, and is in effect a waiver of any further review of the .questions of fact. While Appellate Divisions have a wide latitude, which we should be glad to have them exercise more freely, in reversing upon the' facts, they have no power to do so, in an action tried before a jury, unless an order is entered denying a motion for a new *102 trial made upon the proper ground and an appeal is taken from the order. Ho exception lies to the action of the court in denying such a motion, but an order must be entered and an appeal taken therefrom, or the Appellate Division has no power to review or reverse upon the facts. (Code Civ. Proc. §§ 999, 1347.) The only questions properly before the court below were those raised by exceptions taken to rulings relating to the admission or exclusion of evidence. The counsel for the plaintiff has argued no exception of this character, and we are unable to find one that would authorize a reversal of the judgment rendered by the trial court. Certain evidence, at first excluded subject to exception, ivas finally received and the error thus corrected. Ho other exception raises a debatable question, and hence we are compelled to reverse the order of the Appellate Division and to affirm the judgment of the trial court, with costs. Parker, Oh. J., G-ray, O’Brien, Bartlett, Martin and Cullen, JJ., concur. Ordered accordingly.