
    JOHANN NAUMANN, Respondent, v. THE BREWERS’ ICE COMPANY OF NEW YORK, Appellant.
    
      Motion to dismiss—when exact ground to be stated—misapprehension of evidence by trial judge.
    
    Where, upon a motion to dismiss the complaint for insufficiency of evidence, defendant’s counsel must from the circumstances have perceived that the trial judge was under a misapprehension as to the exact words of the evidence, and that the evidence as apprehended by the judge would justify the denial of the motion, he should by stating the exact ground of the motion call the judge’s attention to such misapprehension, and if he fails to do so an exception to the denial of his motion will not be sustained.
    Before Sedgwick, Oh. J., Truax and O’G-orman, JJ.
    
      Decided March 1, 1886.
    Appeal by defendant from judgment entered on verdict for plaintiff, as directed by the court.
    
      Guggenheimer & Untermeyer, attorneys, and Samuel Untermeyer, of counsel, for appellant.
    
      Oliver M. Benedict, attorney, and of counsel, for respondent.
   Per Curiam.

The action was for loss of service, &c., caused as alleged by the negligence of defendant’s servant in allowing a heavy piece of ice to fall from one of defendant’s ice-wagons, upon plaintiff’s son, thereby wounding him and requiring plaintiff to procure medical attendance, &c. There was some proof or presumption of negligence in not loading the cart so that the ice should not fall.

At the end of plaintiff’s testimony, the defendant asked the court to direct a verdict in its favor, on the ground that no negligence had been shown on the part of the defendant or its servants. If the cart from which the ice fell were the property of defendant, there was sufficient evidence of negligence in allowing the ice to fall. If the name of defendant were on the ice-cart, there was evidence as to the ownership of the cart being in defendant. It appears that the judge assumed that there was evidence on the second point. The testimony proved that upon the cart were the words “Brewery Ice Wagon, No.'l,” and it is apparent that the judge believed that the witness to this had given the name of the defendant. The judge told the defendant’s counsel on the trial that he might go to the jury if he pleased, but this he declined. The counsel must have perceived that the judge was under a misapprehension as to the exact words upon the cart, and should then have given the exact ground of the motion, or have gone to the jury:

Judgment affirmed, with costs.  