
    Peter Fraser, Respondent, v. The Alpha Combined Heating & Lighting Manufacturing Co., Appellant.
    (City Court of New York, General Term,
    December, 1898.)
    1. Trial — Where the existence of a question of fact is conceded.
    A failure to move for a nonsuit or for the direction of a verdict concedes the existence, of a question of fact for the jury and precludes the defendant from raising the objection on appeal.
    3. Appeal,— When a subsequent notice for a new trial is not within a notice of appeal.
    A motion for a new trial, not made until four months after service of a notice of appeal and then denied with the same effect as though made at the close of the trial, is not within the notice of appeal so served and cannot be considered by the appellate court.
    Appeal from a judgment in favor of plaintiff entered upon a verdict.
    William Sutphen, for appellant.
    J. Baldwin Hands, for respondent.
   Olcott, J.

This is an appeal by the defendant from a judgment entered on Hay 10, 1898, on the verdict of a jury.

The notice of appeal was served'on Hay 17, 1898, and purports to appeal from the order denying the motion for a new trial, as well as from the judgment. But, in fact, no motion for a- new trial was, therefore, made. Such motion was not made until September 23, 1898, when an order was entered, denying the motion with the same force and effect as if a motion for a new trial on the same grounds had been made on the minutes at the close of a new trial and denied.” The effect of this provision of the order, cannot, we think, be properly claimed to- have been such that the notice of appeal served four months prior thereto brings this order before us for review, and we must, therefore, hold that no appeal has been duly taken from this order.

So far as the appeal from the judgment herein and th°e matters which it brings up for review are concerned, our examination of the evidence offered for the plaintiff convinces us that the defendant’s motion for a nonsuit, made at the end of the plaintiff’s case, should have been granted.

The plaintiff’s evidence was insufficient to prove his alleged employment by the defendant. But instead of resting upon the exception which the defendant took to the denial of that motion, in which case that denial would have duly come before us for review, the defendant chose to introduce its defense; and, at the close of all the testimony, defendant did not renew its motion to dismiss nor ask for the direction of a verdict. It thereby conceded that there was a question to go to the jury, and it waived the possibility of a successful appeal from the denial of the motion for a nonsuit made at the close of the plaintiff’s case.

Entertaining our views about the merits of the ease, we are reluctant to decide this appeal upon a technical question of practice, but the authorities do not permit us to do otherwise. Barrett v. Third Avenue R. R. Co., 45 N. Y. 632; Sullivan v. Brooks, 10 Misc. Rep. 368; Kaufman v. Canary, 21 id. 302.

The judgment appealed from must be affirmed, with costs.

McCarthy and Scotchman, JJ., concur.

Judgment affirmed, with costs.  