Hyperlawhypertext legal database Pease Piano Co. v. Sarles 109 N.Y.S. 313

← Cases

Pease Piano Co. v. Sarles

109 N.Y.S. 313 Court N.Y. App. Div. Decision date 1908-03-06 English

Contents

Majority

p. 313
PEASE PIANO CO. v. SARLES.
(Supreme Court, Appellate Division, First Department.
March 6, 1908.)

Headnote

Appeal—Questions in Lower Court.
A party cannot on appeal raise objections presenting an entirely different theory from that on which the case was tried in the lower court.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1053-1069.]
Appeal from Trial Term.
Action by the Pease Piano Company against Hiram Sarles. From a judgment for defendant, plaintiff appeals. Affirmed.
Argued before PATTERSON, P. J., and McLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
Reno R. Billington, for appellant.
Smith Lent, for respondent.

The point upon which the appellant relies is not presented by any exception and was not raised below. The case

p. 314
was tried upon an entirely different theory, and its trial upon that theory was acquiesced in by appellant, as well as by the defendant. Upon that theory the record presents no reversible error.

Judgment affirmed, with costs.