
    Charles G. Smith, App’lt, v. S. Morris Pryor et al., Resp’ts.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed April 7, 1890.)
    
    1. Appeal—New tbial.
    No appeal lies to the common pleas of the city of New York from an order of the city court either granting or denying a new trial on the ground of newty-discovered evidence.
    3. Same.
    Nor will an appeal lie to such 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 on the trial.
    Appeal by plaintiff from an order of the general term of the city court, affirming an order of the special term denying a motion for a new trial upon the ground of newly discovered evidence, and upon the ground of error in the charge of the justice to the jury.
    
      Saunders, Webb & Worcester, for app’lt.; Lowrey, Stone & Auerbach, for resp’ts.
   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 N. Y. Civ. Pro., 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, receiver, v. Platt, 96 id., 635, and cases cited. The court below did not refuse to exercise its discretion for want of favor, 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 á 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, 15 N. Y. State Rep., 370.

Larremore, Oh. J., and Bischoff, J., concur.  