
    Schoonmaker v. Niver.
    
      (Supreme Court, General Term, Third Department.
    
    February 7, 1889.)
    Appeal—Review—Failure to Except.
    Where no motion is made in the trial court for new Mai on the facts, or to set aside the verdict for any cause, and no exception is taken to the charge, it will be assumed on appeal that the jury determined that no cause of action was established, and a verdict for defendant will not be disturbed.
    Appeal from Albany county court.
    Action by Henry Schoonmaker against Eugene Hiver, for personal injuries. Judgment for defendant, and plaintiff appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      W. S. Hevenor, for appellant. Galen R. Hitt, for respondent.
   Ingalls, J.

This is an action by the plaintiff to recover damages for an injury to his person, alleged to have been committed by the defendant. The action was tried by the court and jury, and a verdict was rendered in favor of the defendant, and no motion was made by the plaintiff in the county court for a new trial upon the facts, or to set the verdict aside for any cause. Ho exception was taken to the charge. Under such circumstances, we must assume that the jury determined that no cause of action was established by the plaintiff, and this court cannot, in view of the record before it, inquire into the propriety of such verdict upon the merits of the action. If the case were properly before us for review upon the facts, the evidence is so conflicting that this court would be disinclined to interfere with the verdict. Some exceptions were taken by the plaintiff’s counsel during the progress of the trial, which mainly relate to the question of damages, and, in view of the verdict rendered, that question would seem to be immaterial, and consequently the exceptions, so far as they relate to such question, must be regarded unavailing to the appellant. Furthermore, the questions addressed by the plaintiff’s counsel to the witnesses, as to whether the plaintiff complained of pain, seem to have been too unrestricted as to the time when the declarations of the plaintiff were claimed to have been made, and otherwise objectionable, within the case of Roche v. Railroad Co,, 105 N. Y. 295, 11 N. E. Rep. 630. In that case the court say: “But evidence of simple declarations of a party, made some time after the injury, and not to a physician for the purpose of being attended to professionally, and simply making the statement that he or she is then suf-« fering pain, is evidence of a totally different nature, is easily stated, liable to gross exaggeration, and of a most dangerous tendency, while the former necessity for its admission has wholly ceased.” The other exceptions relate to the examination in regard to the character and credibility of the parties, respectively, who were examined in their own behalf as witnesses upon the trial. The trial court allowed considerable latitude of examination upon that subject; but, considering the discretion which he was authorized to exercise, and the result of such examination as shown by the evidence, we are persuaded that the case of the plaintiff has not been prejudiced by any erroneous ruling of the court in that respect upon the trial. The judgment should be affirmed, with costs. All concur.  