
    JAMES P. ROSS, Appellant, v. EASTMAN COLBY, Respondent.
    
      Neglect to move for nonsuit—effect of—Appeal to County Court — question of fact on appeal for erroi' of law—Moidence as to efforts to produce witnesses.
    
    When a defendant does not move for a nonsuit, he admits that the evidence on the part of the plaintiff is sufficient prima facie to justify a-verdict in his favor. If a defendant, in an action brought before a justice, desires another determination upon the facts of the case, he must appeal to the County Court for a new trial; otherwise, the appellate court will not be justified in reversing a judgment for the insufficiency of the evidence.
    The admission or rejection of evidence to show fruitless efforts (by attachment or otherwise) on the part of the plaintiff to procure the attendance of a witness whom he might reasonably be expected to produce, is not a ground for reversal. It could not affect the determination of the issues.
    
    Appeal from a judgment of the Monroe County Court, reversing a judgment of the Justice’s Court on appeal for error of law. The notice of appeal stated as one of the grounds thereof, that the verdict and judgment were contrary to law and evidence. This was disregarded in the County Court and in this court, because the question of the sufficiency of the evidence to warrant a verdict was not raised in the Justice’s Court. The action was brought to recover damages for injuries to plaintiff’s property, sustained from a fire caused by defendant.
    
      A. J. Wilkin, for the appellant.
    
      Horace J. Thomas, for the respondent.
    
      
       People v. Coleman, 1 Hun, 596; S. C., 4 N. Y. Sup. Ct. R., 61. [See S. C., 55 N. Y., 81.—Rep.]
    
   Opinion by Gilbert, J.

Judgment of County Court reversed, and that of Justice’s Court affirmed.  