Frank T. Dearing, Respondent, v. The Independent Union Telephone Company, Appellant

Frank T. Dearing, Respondent, v. The Independent Union Telephone Company, Appellant. Fourth Department May 3, 1911. Practice — trial by court — decision — appeal — failure to file exceptions —motion for new trial.. • "Where at the close of a trial the j ury was discharged by .consent of both parties and the- issues submitted to the trial justice, who thereafter made his decision in writing in plaintiff’s favor, with the necessary findings, the defendant, who failed to file any exceptions as required by section 994 of the Code of Civil Procedure, cannot on appeal raise the point that upon the undisputed facts and findings the decision should have been in its favor. ' Nor does the fact that.a motion by defendant for a new trial was made and entertained upon the minutes under section 999 of the Code of Civil Procedure aid it, for that section applies only to trials by jury and not to trials by the court. Appeal by the defendant, The Independent Union Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered.in the office of the clerk of the' county of Brie on the 13th day of June, 1910,- upon the decision of the court rendered after a trial at the Erie Trial Term, the jury having been discharged, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes. Corden T. Hackett, for the appellant. Robert W. Harrington, for the respondent. [MAJORITY — Kruse, J.:] Kruse, J.: The judgment from which the defendant appeals is for two penalties of $100 each, recovered under the provisions of section 103 of the Transportation Corporations Law (Gen. Laws, chap. 40; Laws of 1890, chap. 566; Consol. Laws, chap. 63; Laws of 1909, chap. 219), for refusing to transmit telephone messages. The defendant contends that upon the. undisputed facts and findings contained in the decision, the defendant is not liable foi°the forfeiture imposed by the statute. Whether that is so or not, Í think the defendant is not in a position 'to raise that question. Motions for a nonsuit and the direction of a verdict in its favor were made on behalf of the defendant, hut Were not ruled on by the trial court, as both parties consented that the jury be discharged, and the case was submitted for decision to the judge, who thereafter made his decision in writing, making findings as required by the Code of Civil Procedure (§§ 1010, 1022); but no exceptions thereto were filed so far as the. record discloses. Under such circumstances I think the question cannot be reviewed here on this appeal. (Code Civ. Proc. § 994; Frederick v. City of Johnstown, 47 App. Div. 221.) While a motion for a new trial wks made and entertained on the judge’s minutes, under’section 999 of the Code of Civil Procedure, that does not aid the defendant, as that section applies only to a trial by jury, and this was a trial by the court. (Waydell v. Adams, 23 App. Div. 508.) The judgment and order must,- therefore, be affirmed, with costs. ■ • All concurred. Judgment and order affirmed, with costs.