Majority
p. 596(173 App. Div. 914) FORD et al. v. BUSTIN. (Supreme Court, Appellate Division, Fourth Department. March 15, 1916.) Argued before KRUSE, P. J., and FOOTE, LAMBERT, and MERRELL, JJ.
Headnote
Appeal and Error <@=>853—Reservation of Grounds of Review.Where no objection was made on trial to submission of the case on the theory adopted, or request to submit it on any other theory, and no exception taken presenting the question to the Appellate Division, the contention that the case was submitted to the jury upon the wrong theory of the defense pleaded, and which the evidence tended to establish, was not available to appellants.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1524, 3405; Dec. Dig. <@=>853.]
<@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Action by Thomas P. Ford and others against Carrie M. Bustin. On motion for reargument. Motion denied.
Nottingham & Nottingham, of Syracuse, for appellant.
Baldwin & Magee, of Syracuse, for respondent.
Upon this motion for reargument it is urged that the court failed to appreciate appellants’ contention that the case was
p. 597
submitted to the jury upon the wrong theory of the defense pleaded, and which the evidence tended to establish. Whatever merit there may be in the point, we think it is not available to plaintiffs on the appeal as a ground of error, for the reason that no objection was made at the trial to the submission of the case on the theory adopted, or request to submit it upon any other theory, and no exception was taken which presents the question here.
Upon the other grounds urged upon this motion, we find nothing that was not fully considered by us, or that we think points to any error in our decision.
The motion is denied, with $10 costs.