
    ADLER v. METROPOLITAN ST. RY. CO.
    (City Court of New York, General Term.
    January 29, 1901.)
    Appeal — Contributory Negligence — Trial — Motion to Dismiss—Exceptions.
    Where, in an action for injuries caused by defendant’s negligence, the defendant did not claim at the trial that plaintiff was not entitled to recover because of his contributory negligence, and did not move to dismiss or take any exceptions to the charges of the court, it cannot urge such ground to reverse a judgment on a verdict for plaintiff, since, by not moving to dismiss, defendant conceded that a case to warrant a submission to the jury had been made.
    Appeal from trial term.
    Action by Joseph Adler against the Metropolitan Street-Railway Company. From a judgment for plaintiff, and an order denying defendant’s motion for a new trial, defendant appeals.
    Affirmed
    Argued before McCARTHY and CONLAN, JJ.
    
      Henry A. Robinson, for appellant.
    Hermán Fox, for respondent.
   CONLAN, J.

The action was for damages for an injury alleged' to have been caused to the plaintiff by the negligence of the defendant. The evidence upon the trial was somewhat in conflict as to the manner in which the accident occurred, but, as no motion was made to dismiss, it is apparent that the defendant conceded there was sufficient to warrant a submission to the jury; nor was any exception taken by the defendant to the charges of the court, and we naturally conclude that the same was entirely fair to the defendant. The defendant relies upon the broad ground that the plaintiff was not entitled to any verdict, because of his contributory negligence, but in the whole course of the trial he failed to present that view to the trial justice. We do not think he has, either by motion or exception, brought himself to a position or condition where we may interfere to disturb the verdict, as we have seen that all of the • evidence was submitted to the jury under the charge of the court without exception, and the conclusions thus reached should, we think,. be allowed to stand.

Judgment and order appealed from affirmed, with costs.

MCCARTHY, j., concurs.  