New York Rubber Co. v. . Rothery
New York Court of Appeals
The nature of the appeal and the material facts are as-follows. This is an appeal from an order of the General Term, m the second judicial department, made September 18, 1888, which affirmed an order of the Special Term denying plaintiff’s motion for a resettlement of the case herein. The plaintiff was beaten upon the trial of the action, and made a proposed case.
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The nature of the appeal and the material facts are as-follows. This is an appeal from an order of the General Term, m the second judicial department, made September 18, 1888, which affirmed an order of the Special Term denying plaintiff’s motion for a resettlement of the case herein. The plaintiff was beaten upon the trial of the action, and made a proposed case. The eighth proposed amendment thereto struck out the alleged refusal of the court to charge the fifth of a series of requests to charge, handed up by the plaintiff’s counsel, and made it appear that such request had been charged;…
1Opinion of the CourtPeckham, J.
The affidavits on the part of the plaintiff are plain and distinct upon the point that the fifth request to charge was marked as “ refused,” by the learned trial judge, and that after he handed the requests back to counsel they were read aloud by him, and the fifth request was refused in open court, and an exception to such refusal then duly and openly taken. The affidavit of the counsel for defendants does not meet this distinct allegation, but says that every request of plaintiff to charge that any material and appreciable diminishing of the volume of water in the stream by plaintiff’s…
2Cited by23 opinions
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