
    Annie Lowenthal, Respondent, v. Harris M. Copland, Appellant.
    (City Court of New York, General Term,
    June, 1896.)
    Appeal — Question not raised below.
    A defendant by not moving for a direction of a verdict or a dismissal of the complaint at the close of the case concedes that the evidence is sufficient to justify a finding for the plaintiff, and cannot on appeal raise the point that the evidence did not justify a submission of the case to the jury.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.
    Louis Steckler, for appellant.
    Louis J. Vorhaus, for respondent.
   O’Dwyer, J.

The action was brought to recover the amount of two promissory notes made by the defendant, and delivered for value to one Harris Ablowitch, who died before the commenceh ment of this action.

The plaintiff claims that before his death Mr. Ablowitch gave her the notes as a gift.

The defendant insists that the plaintiff is hot the owner of the -notes; that the notes were not given to her by the owner, and further that no recovery can be had thereon by reason of an usurious agreement for interest thereon at a sum in excess of the legal rate of six per cent., to-wit, ten per cent.

On the trial the plaintiff, to sustain her cause of action, produced the notes, and they have been admitted in evidence, and she then offered her daughter (a young lady sixteen years of age) as a witness, and this daughter testifies that she was present on pr about May 29, 1895, the time when the deceased (who was the uncle of the plaintiff, and had resided with her for the two and a half years next preceding his death), gave the notes in question to the plaintiff, and she heard Mr. Ablowitch say to her mother: “ You have been very kind, and I present these (the notes) to you to collect and keep for yourself.”

The defendant introduced evidence in his own' behalf in sup-' port of both positions taken' by him against the recovery- by the plaintiff; to-wit: That no'- gift had been made to the plaintiff, and that the notes were tainted -with usury. ,

At the conclusion of the trial-the defendant failed to move for a direction of a verdict in his.favor, or to dismiss the complaint, - and this failure was a concession by -the' defendant that' the evidence wás sufficient to -justify a- finding for the plaintiff, and he cannot mow, after, taking .his chance with the jury, question their vérdiet upon the ground that-the evidence did not- justify a Sub.mission to them. However, if he.had moved', we think the.testimony of the daughter and the production of the notes made á case for the jury.

The- appellant insists, that the verdict is against the weight of evidence and founded upon insufficient evidence. .

We do not think so; there was. a conflict of evidence and the court, in a proper charge, left the facts to the jury to determine whether the plaintiff had sustained the burden of proof by a fair preponderance of evidence.

. ..-The .jury have decided that in .favor of the plaintiff, and we cannot say, after a careful, examination of the record, that the verdict is. against the weight of evidence, or that it is not justified by a fail' preponderance of evidence. -

The defendant, if he felt at all alarmed about being called upon to pay these notes a second time upon suit'of the estate of Ablowitchy could have, avoided that danger by. an application for an interpleader at the time this action was-commenced. ’

" The judgment and order appealed from should be affirmed, with costs.. - •.

Van Wyck, Ch. J., and Conlan, J., concur.

Judgment and order affirmed, with costs.  