Smith v. Pryor

Daly, J. No appeal lies to this court from an order of the city court either granting or denying a new trial upon the ground of newly-discovered evidence. Lesser v. Wunder, 9 Daly, 70. The court of common pleas holds the same position with respect to the city court of New York city which the court of appeals holds with respect to the supreme court and the superior city courts, ( Walsh v. Schulz, 6 Civ. Proc. R. 126; Rowe v. Comley, 11 Daly, 318;) and the court of appeals will not entertain an appeal from an order of the last-named courts granting or refusing a new trial, (Donley v. Graham, 48 N. Y. 658; Smith v. Platt, 96 N. Y. 635, and cases cited.) The court below did not refuse to exercise its discretion for want of power, or for any other reason; and the authorities cited by the appellant are not, therefore, in point. No appeal lies to this court from an order of the city court refusing a new trial for alleged misdirection to the jury, unless an exception thereto has been taken upon the trial. “When a trial and general verdict have been had, we can deal only with questions of law arising upon exceptions duly taken.” Rowe v. Comley, 11 Daly, 318. There was no exception taken to the alleged misdirection of the judge pending at the trial, and there is nothing for us to review. The order appealed from should be affirmed, with costs and disbursements. Brown v. Simmons, 14 Daly, 456. All concur.