
    Gaylord v. Gallagher.
    (New York Common Pleas—General Term,
    November, 1892.)
    A defendant who, when both sides have rested, fails to renew a motion for a nonsuit, and does not ask the direction of a verdict in his favor, concedes the sufficiency of the evidence to warrant its submission to the jury; and an exception to a denial of his motion for a nonsuit at the close of plaintiffs case is not available on appeal.
    In the absence of a statement in the case that it contains all the evidence bearing on the questions in controversy, no inquiry will be made on appeal whether a verdict is against the weight of evidence.
    Appeal from a judgment for plaintiffs entered upon the verdict of a jury and an order denying defendant’s motion for a new trial.
    Action to recover upon two certain contracts for the sale and delivery of builders’ materials, the answer denying performance by plaintiffs, and the value of the materials admitted to have been delivered, besides interposing four several counterclaims for damages alleged to have been sustained by defendant from nonperformance of the agreements mentioned in the complaint on plaintiffs’ part.
    
      John E. Eustis, for plaintiffs (respondents).
    
      Henry A. Bram, for defendant (appellant).
   Bischoff, J.

But two exceptions appear in the case, one to the denial of defendant’s motion for a nonsuit when plaintiffs rested, the other to the denial of defendant’s motion to set the verdict aside and order a new trial.

'Neither of these exceptions, however, prove, upon examination, to he available to defendant for the purpose of reversing the judgment and order appealed from. The motion for a nonsuit was founded on the alleged insufficiency of the evidence to sustain the cause of action, but any defect in the proof, when plaintiffs rested, was curable by evidence introduced on behalf of either party after denial of defendant’s motion. Schenectady & Saratoga Plank Road Co. v. Thacher, 11 N. Y. 102, 112; Tiffamy v. St. John, 65 id. 314; Painton v. Northern Central Railway Co., 83 id. 7.

When both sides rested, defendant did not renew his motion for a nonsuit, nor ask to have a verdict directed in his favor. The sufficiency of the evidence to warrant its submission to the jury was thus conceded. Barrett v. Third Ave. R. Co., 45 N. Y. 628, 632; Rowe v. Stevens, 44 How. Pr. 10; St. John v. Skinner, 44 id. 198; Gaspar v. O'Brien, 47 id. 80; Schwinger v. Raymond, 105 N. Y. 648.

And appellant has precluded us from inquiry whether the verdict is against the weight of the evidence, by omitting from the case the statement that all the evidence bearing upon the questions in controversy is thereby presented. Aldridge v. Aldridge, 120 N. Y. 614; Arnstein v. Haulenbeek, 16 Daly, 382, and cases cited.

The judgment and order appealed from must be affirmed with costs.

Pryor and Giegerich, JJ., concur.

Judgment and order affirmed.  