
    John Sullivan, Respondent, v. William Brooks et al., Appellants.
    New York Common Pleas
    General Term,
    December, 1894.)
    A failure to move to dismiss at the close of the case, or ask for a direction of a verdict, or object to the submission of the case to the jury, is a concession that there is evidence tending to prove the facts alleged, and precludes the party from claiming on appeal that the verdict is without evidence.
    Where there is no motion to dismiss at the close of the entire case, an exception to a denial of a motion for nonsuit at the close of plaintiff’s case is not available on appeal.
    Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial.
    Action to recover for personal injuries alleged to have been caused by the negligence of one of defendant’s drivers, who, it is claimed, backed his truck over the curb, without warning, and against the plaintiff, who was engaged in shoveling sand down a manhole in the sidewalk.
    
      Alex. Thain, for appellants.
    
      Edwin G. I) mis, for respondent.
   Per Ourimn.

We find that there was no motion by defendants to dismiss the complaint at the close of the case.

A failure to make such a motion, or ask for a direction of a verdict, and failing to object to the submission of the case to the jury, is a concession that there is evidence tending to prove the facts alleged, and is a consent to the decision of the question by the jury, and precludes the defeated party talcing the position upon appeal that the verdict is without evidence, and, therefore, against law. Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 632.

Kor can the appellant, in view of the failure to make such a motion at the close of the whole case, bring up the questions involved under his exception to the denial of his motion to dismiss at the close of the plaintiff’s case. A defendant who proceeds to introduce testimony after denial of his motion for a nonsuit at the close of plaintiffs evidence in chief thereby waives his exception to that denial. He has an undoubted right to stand upon his motion for a nonsuit, but he has no right to insist upon his exception after having subsequently put in his testimony and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony.

It not infrequently happens that the defendant himself by his own evidence supplies the missing link; and if not, he may move to take the case from the jury upon the conclusion of the entire testimony. Bogk v. Gassert, 149 U. S. 17-23 ; followed in Wilson v. Haley L. S. Co., 153 id. 39.

Dresent: Daly, Ch. J., Bisohoff and Peyoe, JJ.

Judgment affirmed.  