Brooker v. Filkins — 25 N.Y.S. 514

Majority

p. 514

BROOKER et al. v. FILKINS.

(City Court of New York, General Term.

October 20, 1893.)

Headnote

Appeal—Objections not Raised Below.

An objection to remarks made by counsel in his argument before the jury cannot be made for the first time on appeal.

Appeal from trial term.

Action by Smith A. Brooker and James A. Lahey against John Filkins for moneys collected and converted. There was a judgment in favor of defendant, and plaintiffs appeal.

Affirmed.

Argued before EHRLICH, C. J., and MCCARTHY and HEW-BURGER, JJ.

Carpenter & Hassett, for appellants.

Abner C. Thomas, for respondent.

During the year 1889 the defendant was employed by plaintiffs to deliver milk to plaintiffs’ customers, and it was part of his duty to collect moneys as a part of his employment. This action was brought to recover the moneys collected by defendant, and converted to Ms own use. On the trial of this action the jury found a verdict for defendant. The counsel for appellants insist that the trial justice erred in permitting the counsel for the defense, in summing up, to refer to the effect that their verdict would have on the defendant. A careful examination of the printed case fails to disclose anywhere that the attention of the court was called to such conduct on the part of counsel, and therefore the contention is without merit. The case was properly submitted to the jury, and none of the exceptions would warrant us in disturbing their verdict. Judgment affirmed, with costs. All concur.