Mollineaux v. Clapp — 99 A.D. 543

Majority

p. 543

William R. Mollineaux and Benjamin F. Mollineaux, Respondents, v. Susie J. Clapp, Appellant.

Headnote

Submission of a case to the jury on a theory different from that stated in the com plaint— what is reviewable under an appeal from a judgment only — remedy of a party who fails to object until after evidence is admitted.

The fact that an action, although brought for goods sold and delivered to the defendant, was submitted to the jury on the theory that the defendant was the undisclosed principal of her husband, does not require the reversal of a judgment entered upon a verdict in favor of the plaintiff, where it appears that neither party objected to the submission of the case on the theory in question, and that such theory was not inharmonious with the evidence.

Upon an appeal from a judgment entered upon the verdict of a jury, not accompanied by an appeal from an order denying a motion for a new trial, the Appellate Divisiofi will confine itself to a review of the exceptions taken on the trial, but will not include in its consideration the exception to the denial of a motion for a new trial.

The refusal of the court to strike out evidence which was not objected to until after it had been admitted does not constitute such an error as requires the reversal of a judgment. The remedy of the objecting party in such a case is to ask the court to instruct the jury to disregard the evidence.

Appeal by the defendant, Susie J. Clapp, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 30th day of September, 1903, upon the verdict of a jury.

James P. Nieman (Theophilus Parsons with him on the brief], for the appellant.

Henry L. Maxson, for the respondents.

The action is for goods sold and delivered to the defendant, consisting of oats, grain, hay, etc. Even though it was submitted to the jury on the theory that defendant was the undisclosed principal of her husband, this was not inharmonious with the evidence. There was neither demur nor objection by either party. I think that there is no reason to disturb the verdict on this ground. (Bennett v. Judson, 21 N. Y. 238 .) As the appeal is from the judgment only, we should confine our review to the exceptions. (Third Avenue R. R. Co. v. Ebling, 100 N. Y. 98 , 101; Setevens v. Schroeder,

p. 544

40 App. Div. 590 ; Ten Eyck v. Witbeck, 55 id. 165, 168; Collier v. Collins, 172 N. Y. 99 , 101.)

The first exception is to the question put to Breen, who was in the employ of the defendant and her husband. He testified that he had accompanied the defendant to the bank, and was then asked: “ Q. What took place ? ” This was objected to, and the witness then answered : “ A. Sometimes she would go in herself, and sometimes I would go in.” The counsel then objected on the ground of immateriality, the objection was overruled, and the defendant then excepted. The question objected to did not necessarily call for an answer that could not be material, competent and relevant. The objection made before the answer to the question was not put upon any ground, nor was it ruled upon or excepted to. The objection on the ground of immateriality was made subsequent to the answer, and no motion was made to strike out the answer. In any event, I cannot see that the answer was prejudicial. The second exception is to the question put to the plaintiffs’ witness Houghton, who testifies that the defendant, after her husband’s death, came to him saying she wished to sell a wagon. “ Q. And you took the wagon and tried to sell it, did you not? A. Yes, sir.” Defendant’s counsel then objected that it was incompetent, irrelevant and immaterial, and moved to strike out the answer. The motion was denied under exception. This falls within the rule laid down by us in McCoy v. Munro ( 76 App. Div. 437 ) as follows: “ But the objection appears as taken after the question was answered, and if the exception was to the denial of the motion to strike out the answer, the refusal of the court was not error, but the remedy of the defendant was a request for an instruction that the jury disregard it. (Holmes v. Moffat, 120 N. Y. 159 , 163; Smith v. Nassau Electric R. R. Co., 57 App. Div. 152 , 154.)”

The 'goods were not household necessaries, but were hay, oats, grain, etc., used to feed the horses and the mule kept on the premises owned by the defendant, and there was evidence that the defendant was also the owner of these cattle. (See Cutter v. Morris, 116 N. Y. 310 .) The mere facts that the goods were charged to the husband, or that bills were sent to him, or that he gave notes for them, were explainable. (Franklin Coal Co. v. Hicks, 46 App. Div. 441 . See, too, Foster v. Persch, 68 N. Y. 400 .) The fourth

p. 545

exception, being to the denial of a motion for a new trial, is not available on this appeal. (Boos v. World Mutual Life Insurance Co., 64 N. Y. 236 ; Matthews v. Meyberg, 63 id. 656; Third Avenue R. R. Co. v. Ebling, supra.)

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.

Cases cited

Bennett v. Judson 21 N. Y. 238 N.Y. p. 543
Third Avenue Railroad v. Ebling 100 N. Y. 98 N.Y. 1885-10-06 at 101 p. 543
Stevens v. Schroeder 40 App. Div. 590 N.Y. App. Div. 1899-05-03 p. 544
Collier v. Collins 172 N. Y. 99 N.Y. 1902-10-07 at 101 p. 544
Holmes v. Moffat 120 N. Y. 159 N.Y. 1890-04-15 at 163 p. 544
Cutter v. Morris 116 N. Y. 310 N.Y. 1889-10-08 p. 544
Foster v. Persch 68 N. Y. 400 N.Y. 1877-02-18 p. 544
Boos v. World Mutual Life Insurance 64 N. Y. 236 N.Y. 1876-02-22 p. 545