Jackson v. Till — 103 N.Y.S. 110

Majority

p. 110

JACKSON v. TILL.

(Supreme Court, Appellate Term.

March 14, 1907.)

Headnote

Appeal-Review—Failure to Present Question Below. ,

The admission of oral testimony to vary a written contract was no: ground for a reversal, where the defeated party against whom the evidence was introduced made no objection thereto on the trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1263.]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

p. 111

Action by Harry A. Jackson against Jacob Till. ,Erom a judgment in favor of defendant, plaintiff appeals. Affirmed.

Argued before GILDERSLEEVE, P. J., and DAVIS and HENDRICK, JJ.

Prank Thorn, for appellant.

Oscar Marks, for respondent.

The written contract of sale contains the following provision:

“The vendor agrees that H. A. Jackson is the broker who has brought about this sale, and agrees to pay said broker his commissions therefor.”

Notwithstanding this provision in the written contract, oral testimony was adduced on behalf of the defendant, to rebut which plaintiff also adduced oral testimony. No objection was made by the plaintiff to thus varying and rebutting the written contract. I have read the entire record, and no objection or exception appears therein. A disputed state of facts arose upon all the evidence, and the trial justice resolved the controverted facts in favor of the defendant.

The judgment appealed from is affirmed, with costs. All concur.