The decision of the court upon the appeal in this action was undoubtedly correct, as,-upon the evidence, there was a question which might have been submitted to the jury if request therefor had been properly made, but which 'was left to the court to decide by the motions for the direction of a verdict, and the 'decision of the court, like that of the jury, cannot be disturbed by the- appellate court if there" be any evidence to uphold it. The evidence of the defendant and the witness Tinlcham of diversion and notice to the plaintiff was- not conclusive,, but only required the submission of , the question to the jury,, that they .might determine, whether the note.was diverted,"as. the defendant alleged. Nickerson v. Ruger, 76 N. Y. 279.. See page 283, at the conclusion of thé opinion. The opinion, of the General Term in this case shows that no proper motion was made for leave to go to ..the jury, and no proper exception was taken to the refusal of- the inconsistent applications which were coupled, to wit, for the direction of the verdict and the submission of the case to the TTY- .
Motion denied, with ten dollars costs. ’ •
Present: Daly, Oh. J., Bischoff and Pryob, JJ.
Motion denied, with ten dollars costs. » ■