John C. Provost, Respondent, v. John M. McEncroe, Appellant

John C. Provost, Respondent, v. John M. McEncroe, Appellant. Where, at the close of the evidence on a trial, both parties asked the court to direct a verdict in their favor, and the court directed a verdict for plaintiff, to which defendant excepted, but made no request to be allowed to go to the jury, held, that as the parties had thus treated the case as presenting questions of law only, and as there was evidence to support the ruling, the judgment could not be assailed by showing that there were questions of fact arising on the evidence. (Argued March 12, 1886; decided March 26, 1886.) This action was upon four promissory notes executed by defendant. The notes were renewals of other notes similarly executed. The defense was that the original notes were made by defendant for the accommodation of the payee, to be used for a special purpose, of which plaintiff had knowledge when he received them, but that they were misappropriated by the payee, of which fact defendant was ignorant when he renewed them. The following is an extract from the opinion : “At the close of the evidence the plaintiff ásked the court to direct a verdict in his favor, and the defendant requested a similar direction in his, own behalf. The court ordered a verdict for plaintiff, to which the defendant excepted, and this is the only exception in the case raising any material question. “ The defendant made no request to be allowed to go to the jury upon questions of fact, and both parties treated the case as presenting .questions of law alone. Under such circumstances, if there was evidence supporting the conclusions found by the trial court, the judgment rendered thereon cannot be successfully assailed by showing that there were questions of fact arising on the evidence which were not submitted to the jury. By omitting to request the submission of such questions and acquiescing in the determination thereof by the court, the defendant has waived any objection to the mode of trial and must stand upon the exceptions taken. (Winchell v. Hicks, 18 N. Y. 558; Calligan v. Scott, 58 id. 670.) “ The trial court, in disposing of the case, stated that it did so in the manner stated upon the ground that the proof did not establish the fact of a misapplication of the notes by the person to whom they were intrusted by the defendant, and we agree in that view of the case.” The balance of the opinion is taken up with an examination and discussion of the evidence. L. Laflin Kellogg for appellant.' Jesse Johnson for respondent. [MAJORITY — Roger, Ch. J.,] Roger, Ch. J., reads for affirmance. All concur. Judgment affirmed.