
    Ferdinand Kerber, Respondent, v. Nathaniel Niles, Appellant.
    (City Court of New York, General Term,
    October, 1897.)
    Appeal — When the defendant has conceded that there is some evidence to support the verdict.
    Where a motion for a nonsuit, made when the plaintiff rested his case, is not renewed at the close of the whole case, and the defendant does not then ask for the direction of a Verdict in his favor, he concedes that the questions of fact should be submitted to the jury.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict, and from an order denying a motion for a new trial.
    H. T. Brennan, for appellant.
    A. & C. Steckler, for respondent.
   Schuchman, J.

This is an appeal from a judgment, entered on the verdict of a jury in favor of the plaintiff, and from the order denying-the defendant’s motion for a new trial.

There is but one exception in the case, viz.: to the denial of the motion to dismiss, when the plaintiff rested his case.

The question relied on by the appellant is, as to whether the verdict is against the weight of the evidence. Thé motion for a non-suit was not renewed at the close of the whole case, nor was a motion fór a direction made. Both parties accepted the situation with respect to submitting the case to the jury.

Under a charge to which no exception was taken, the jury found for the plaintiff, and we cannot say that the finding is against the Weight of the evidence.

Judgment and. order appealed from affirmed, with costs.

Eitzsimons, J., concurs.

Judgment and order affirmed, with costs.  