(17 Misc. Rep. 313)

#### LOWENTHAL v. COPLAND.

(City Court of New York, General Term.

June 30, 1896.)

Appeal—Review—Objections not Raised Below.

Where defendant did not move for a direction of a verdict in Ms favor, or for dismissal of the complaint, he cannot object on appeal that the evidence did not justify its submission to the jury.

*380Appeal from trial term.

Action by Annie Lowenthal against Harris M. Copland. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before VAN WYCK, C. J., and CONLAN and O’DWYER, JJ.

Louis Steckler, for appellant.

Louis J. Vorhaus, for respondent.

O’DWYER, J.

The action was brought to recover the amount of two promissory notes made by the defendant, and delivered for value to one Harris Ablowitch, who died before the commencement of this action. The plaintiff claims that, before his death, Mr. Ablowitch gave her the notes as a gift. The defendant insists that the plaintiff is not the owner of the notes; that the notes were not given to her by the owner; and, further, that no recovery can be had thereon by reason of an usurious agreement for interest thereon at a sum in excess of the legal rate of 6 per cent., to wit, 10 per cent. On the trial, the plaintiff, to sustain her cause of action, produced the notes, and they have been admitted in evidence; and she then offered her daughter (a young lady 16 years of age) as a witness, and this daughter testifies that she was present on or about May 29, 1895, the time when the deceased (who was the uncle of the plaintiff, and.had resided with her for the 2-| years next preceding his death) gave the notes in question to the plaintiff, and she heard Mr. Ablowitch say to her mother: “You have been very kind, and I present these [the notes] to you, to collect and keep for yourself.” The defendant introduced evidence in his own behalf in support of both positions taken by him against the recovery by the plaintiff, to wit, that no gift had been made to the plaintiff, and that the notes were tainted with usury.

At the conclusion of the trial, the defendant failed to move for a direction of a verdict in his favor, or to dismiss the complaint; and this failure was a concession by the defendant that the evidence was sufficient to justify a finding for the plaintiff, and he cannot now, after taking his chance with the jury, question their verdict, upon the ground that the evidence did not justify a submission to them. However, if he had moved, we think the testimony of the daughter and the production of the notes made a case for the jury.

The appellant insists that the verdict is against the weight of evidence, and founded upon insufficient evidence. We do not think so. There was a conflict of evidence, and the court, in a proper charge, left the facts to tlje jury, to determine whether the plaintiff had sustained the burden of proof by a fair preponderance of evidence. The jury have decided that in favor of the plaintiff, and we cannot say, after a careful examination of the record, that the verdict is against the weight of evidence, or that it is not justified by a fair preponderance of evidence. The defendant, if he felt at all alarmed about being called upon to pay these notes a second *381time, upon suit of the estate of Ablowitch, could have avoided that danger by an application for an interpleader at the time this action was commenced.

The judgment and order appealed from should be affirmed, with costs. All concur.