p. 132Ned R. Fox, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.Headnote
Assumption by the court and counsel on the trial of an action of the existence of a fact — its correctness cannot be questioned on appeal. •The correctness of an assumption, made by court and counsel upon a trial of ah action, of the authority of the general attorney of the defendant corporation to act for it with reference-to the subject-matter of the action, cannot be disputed upon appeal, where no question in reference thereto was raised upon the trial, and no request made to submit the case to the jury on any theory , questioning its correctness.
Appeal by the -defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 14th day of October, 1903, upon the verdict of a jury for $6,900, and also from an order entered in said clerk’s office oh the 13th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.
George H. Walker, for the appellant.
John W. Ingram, for the. respondent.
In this action the plaintiff has recovered a verdict against the defendant for the value of the services of his assignor, rendered by him as a real estate broker in effecting the sale of certain lands belonging to the defendant in the city of New York. The questions litigated upon the trial were, first, whether there was any employment of the broker, and, secondly, whether the broker was the procuring cause of the sale. These questions were submitted to the jury in a clear and impartial charge to which the defendant’s counsel took no exception. The evidence was conflicting on both issues, but after reading it all through as presented in this record, I am unable to agree with the learned counsel for. the appellant that it is not sufficient to sustain the verdict.
The negotiations of the- broker were conducted with Mr. Ira A. Place, the general attorney of the New York Central and Hudson River Railroad Company.. The broker testified without objection
p. 133that Mr. Place had charge of the property of that corporation. It is now contended for the first time, the point not having been suggested upon the trial, that there was no proof that Mr. Place had authority from the defendant to negotiate the sale of the premises and to employ brokers to find a purchaser therefor. The record clearly indicates, however, that the fact that Mr. Place possessed such authority was assumed throughout the trial. The learned judge who presided charged the jury, among other things, as follows : “ Now, there is the _ statement of the plaintiff. Did Mr. Place say to the plaintiff,
‘ We will not lease, but get a purchaser ? ’ If he did, there was an employment to get a purchaser, and that would imply that he was to have his commission. If yon say to a broker, ‘ Get me a purchaser for niy property,’ that is an employment. So if that was substantially said there would be an employment.” As has already been stated, there was no exception to the charge in behalf of the defendant, and its counsel must, therefore, be deemed to have acquiesced in the proposition involved in the language which has been quoted from the charge that an employment by Mr. Place was an employment by the defendant corporation. When a fact is thus assumed upon a trial, the appellant is not entitled to a reversal on the ground that the assumption was erroneous, where it is clear that he has acquiesced therein.
(Hill v.
Heermans, 17 Hun, 470 , 473, and cases there cited.) The correctness of an assumption made by court and counsel upon a trial cannot be disputed upon appeal where no question in reference thereto was raised upon the trial, and no request made to submit the case to the jury on any theory questioning its correctness.
(Wilson v. Rocke, 58 N. Y. 642 .)
The judgment should be affirmed.
All concurred.
Judgment and order affirmed, with costs.