Columbus Circle Hotel Co. v. Dobroczynski — 112 N.Y.S. 1049

Majority

p. 1049

COLUMBUS CIRCLE HOTEL CO. v. DOBROCZYNSKI.

(Supreme Court, Appellate Term.

November 24, 1908.)

Headnote

Appeal and Error (§ 197*) — Reservation of Grounds of Review — Objections.

♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

An objection to defendant’s evidence that plaintiff had not performed a condition precedent, on the ground that defendant had not pleaded the condition, cannot be availed of on appeal where it was not urged at the trial.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 197 ;* Pleading, Cent. Dig. §§ 1428-1441.]

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

Action by the Columbus Circle Hotel Company against Isaac Dobroczynski. Judgment for defendant, and plaintiff appeals.

Affirmed.

Argued before GIEDERSEEEVE, P. J., and MacLEAN and SEA-BURY, JJ.

William C. Relyea, for appellant.

Leopold Ereiman, for respondent.

This is an action on a written guaranty. The de_ fendant offered evidence that a condition precedent which the plaintiff had agreed to perform was not performed by it. The appellant urges that the judgment should be reversed, because the alleged condition precedent was not pleaded in the defendant’s answer. The time for the plaintiff’s attorney to have made this objection was at the trial. The record shows that this objection was not urged against the reception of this evidence. We cannot say that, if objection had been made, the trial court would not have excluded it or that the answer would not have been amended to meet the objection. The objection to the reception of this evidence is therefore not available to the appellant. The

p. 1050

only other question raised by this appeal is one of fact which was resolved against the appellant by the trial court.

We think the judgment appealed from should be affirmed, with costs.

Judgment affirmed, with costs. All concur.