This action was tried before the court and a jury. The defendant at the close of the plaintiff’s case made a motion to dismiss the complaint, which was denied, and an exception was duly taken. She thereupon proceeded to put in her evidence, and the case was then closed. The motion to dismiss, however, was not renewed, nor was any motion made by her for the direction of a verdict in her favor, but the justice, without any objection on her part, proceeded to submit the case upon the evidence to the jury. This was a concession on the part of the defendant that there was evidence tending to prove the facts alleged against her, and was a consent to the decision of the question by the jury, which precludes her from taking the position upon appeal that the verdict was without evidence, and, therefore, against law. Under such circumstances, the exception which was taken to the refusal of the court to dismiss the complaint at the close of *716plaintiff’s case is of no avail. Sullivan v. Brooks, 10 Misc. Rep. 368; Helmuth v. Apgar, 17 id. 623; Kafka v. Levensohn, 18 id. 202, 206. The jury, therefore, having found against the defendant, the latter cannot now be heard to impeach their verdict on the ground that the evidence was insufficient to support it.
After the verdict was rendered, a motion was made for a new trial under section 999 of the Code of Civil Procedure, which was denied. The order, however, is not appealable to this court, an appeal from the decision of the court below on such a motion being authorized only where new trial is granted. Chap. 748 of the Laws of 1896.
There are no other exceptions in the case which present reversible error, and the judgment must, therefore, be affirmed.
Gildebsleeve and Giegebich, JJ., concur.
Judgment affirmed, with costs.