
    EBENEZER A. SMITH, Appellant, v. GEORGE W. STEPHENS, Respondent.
    
      What exception is sufficient where a motion is made to dismiss the complaint.
    
    Appeal from a judgment dismissing tbe complaint, entered by direction of tbe court at tbe New York Circuit.
    Tbe court at General Term, in addition to considering tbe merits of tliis matter, said: “ Tbe complaint was dismissed. No exception was taken to that disposition, but tbe plaintiff asked for liberty to go to tbe jury upon tbe question at issue, which was refused, and exception duly taken. This request, it should be noted, was made after tbe motion to dismiss and before any decision was made, or tbe defendant bad been beard in bis defense. Tbe Court of Appeals have held that wben tbe complaint is dismissed on tbe whole case, it is-not necessary to ask to go to tbe jury, for exception then taken presents tbe case for review. (Tra/bi v. Holland Ins. Oo., 62 N. Y., 598.) They did not decide tbe converse of that question, which is substantially tbe point made upon that case. It is not necessary to consider tbe question, however, as tbe merits will be considered. Nevertheless, it may be said that wben tbe motion to dismiss tbe complaint and tbe plaintiff’s motion for leave to go to tbe jury are substantially simultaneous, tbe exception taken to a denial of tbe latter is sufficient to secure tbe right of appeal. It is as suggested by tbe learned counsel for tbe plaintiff, tbe equivalent to an exception to the granting of tbe motion to dismiss.
    
      Samuel Gohn and Samuel J. Oroohs, for the appellant.
    
      Jo/m B. Mayo, for tbe respondent.
   Opinion by

Brady, J.,

Yan Brunt, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.  