Keller v. Schwartz

PER CURIAM. The return discloses but a single exception taken by the defendant to the exclusion of wholly immaterial proof tendered by him, and fails to show that any motion to dismiss the complaint at the close of the plaintiff’s case or at the conclusion of the trial had been made. Moreover, this court cannot consider arguments based upon exceptions claimed to have been taken, rulings claimed to have been made, and legal propositions affecting the rights of the parties, that might have been debatable, if legally presented. The defendants, in trying the case as they did, conceded that it involved only a question of fact, which was resolved in favor of plaintiff. It cannot be successfully contended that there was no evidence to sustain the findings of fact, and hence the judgment must be affirmed. Lyons v. Thomas, 34 Misc. Rep. 175, 68 N. Y. Supp. 802. Judgment affirmed, with costs.