The defendant Max Newman appeals from a judgment of affirmance entered upon an order of the general terpi of the city court affirming a judgment on a verdict in favor of the plaintiff, and an order denying defendant’s motion for a new trial. Appellant desires this court to review the record for the purpose of determining whether there was any evidence to support the verdict. At the conclusion of plaintiff’s case a motion to dismiss was made and denied, and defendant duly excepted. Defendant proceeded with his-defense, and did not at the close of the entire case renew the motion to dismiss. By this procedure the defendant conceded that there was-a question of fact to submit to the jury. Hopkins v. Clark, 158 N.Y. 299, 53 N. E. 27. We do not consider that the case of Carpenter v. Taylor, 164 N. Y. 176, 58 N. E. 53, reversed or modified the rule laid down in Hopkins v. Clark, supra. The opinion of the majority expressly stated “that the exceptions taken by the defendant’s counsel during the trial and to the charge” sufficiently challenged the validity of a certain agreement which formed the basis of that action, and no reference is made in that opinion to the doctrine laid down in the Hopkins Case. In the case at bar there are no exceptions that would in themselves bring up for review the question of the defendant Newman’s liability as a partner. That was a question which would peculiarly be determined upon the facts. Indeed, a perusal of the record shows that testimony was given in behalf of the plaintiff that defendant admitted that he was a partner, and that he was at times seen at the place of business of “Blumenfeld & Newman.” These facts,
Judgment affirmed, with costs. All concur.