
    John Sullivan, Resp’t, v. William Brooks et al., App’lts.
    
      (New TorTc Common Pleas, General Term,
    
    
      Wiled November 13, 1894.)
    
    1. Appeal—First instance.
    An objection that the verdict is without evidence cannot be raised on appeal, where the defendant did not move to dismiss or for direction of a verdict, or object to.the submission of the case to the jury.
    3. same—Waiver.
    A failure to move for a dismissal at the close of the whole case waives an exception to the denial of a motion to dismiss at the close of the plaintiff’s case.
    Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff.
    
      Alex. Thain, for app’lts ; Edwin Q. Davis, for resp’t.
   Peb Cubiam.

We find that there was no motion by defendants to dismiss the complaint at the close of the case. A failure to make such a motion or ask for a direction of a verdict, and failing to object to the submission of the case to the jury, is a concession that there is evidence tending to prove the facts alleged, and is a consent to the decision of the question by the jury, and precludes the defeated party taking the position upon appeal that the verdict is without evidence, and therefore against law. Barrett v. Third Ave. Railroad Co., 45 N. Y. 628, 632. Nor can the appellants, in view of the failure to make such a motion at the close of the whole case, bring up the questions involved under their exception to the denial of their motion to dismiss at the close of the plaintiff’s case. A defendant who proceed to introduce testimony after denial of his motion for a nonsuit at the close of plaintiff’s evidence in chief thereby waives his exception to that denial. He has an undoubted right to stand upon his motion for a nonsuit, “but he has no right to insist upon his exception after having subsequently put in his testimony and made his ■case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link; and, if not, he may prove to take the case from the jury upon the conclusion of the entire testimony,” —-citing cases. Bogk v. Gassert, 149 U. S. 17-23. Followed in Wilson v. Live-Stock Co., 153 U. S. 39.

Judgment affirmed.  