
    Edward F. Leber et al., Respondents, v. Campbell Stores, Appellant.
    (Supreme Court, Appellate Term,
    May, 1900.)
    1. Appellate Term — Cannot consider weight of evidence, nor reverse for excessive damages.
    The Appellate Term cannot, when determining an appeal from a judgment rendered on a verdict, consider the weight of evidence; nor reverse for excessive damages if there is any evidence to support the verdict.
    
      2. Motion to dismiss — Waiver of denial. «
    An exception to a denial of a motion to dismiss the complaint is waived if the defendant introduces testimony after such denial.
    Appeal from an order of the General Term of the City Court of the city of New York, affirming an order denying appellant’s motion for a new trial, and from a judgment of affirmance entered thereon.
    Hyde & Leonard (William D. Leonard, of counsel), for appellant.
    Maurice J. Katz (Herbert R. Limburger and Henry L. Scheuerman, of counsel), for respondents.
   jPer Ouria/ni.

It has frequently been held that, in determining an appeal from a judgment entered on the verdict of a jury, this court cannot consider the weight of the evidence. Meyers v. Cohen, 4 Misc. Rep. 185; Borgan v. Wright, 22 id. 94, and cases there cited. Nor can this court reverse such a judgment on the ground that the damages are excessive, if there is any evidence to sustain the verdict. This leaves us simply to determine the validity of the exceptions taken by the appellant on the trial. The defendant, by introducing testimony after the denial of the motion to dismiss the complaint, made when plaintiffs rested,-waived his exception to the ruling, and the motion to dismiss must be considered upon all the evidence in the case. Hopkins v. Clark, 158 N. Y. 299; Jones v. Union R. Co., 18 App. Div. 267.

The case contains testimony tending to show that the defendant negligently allowed certain property, belonging to the plaintiffs, to become damaged while in the defendant’s possession. If any property was damaged to any extent under such circumstances, the motion to dismiss was rightly denied. As has been shown, we cannot consider whether the verdict was against the weight of evidence, or whether the damages were excessive.

The exceptions to the evidence were not well taken; in fact they were not discussed by the appellant on the brief.

Judgment and order appealed from are affirmed, with costs.

Present: Tbuax, P. J., Scott and Dugko, JJ.

Judgment and order affirmed, with costs.  