Schwabeland v. Buchler — 31 N.Y.S. 143

Majority

p. 143

SCHWABELAND et al. v. BUCHLER et al.

(Common Pleas of New York City and County, General Term.

November 15, 1894.)

Headnote

Appeal—Objections not Raised Below.

An erroneous assumption of fact by a judge in charging the jury is not available on appeal unless appellants asked to have correction made at the time.

Appeal from trial term.

Action by Henry Schwabeland and others against Herman Buchler and others. There was a judgment in favor of plaintiffs, and defendants appeal.

Affirmed.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ.

Henry L. Both, for appellants.

Forster, Hotaling & Klenke, for respondents.

The case was disposed of in the court below ■upon the assumption that the representations made in January were repeated in March. The judge, in his charge to the jury, assumed that to be the fact. If he was in error, the appellants should have had the correction made at the time. As this was not done, the .general term was justified in regarding that as the fact. If such

p. 144

was the fact, then the fraud was clearly made out, for the vendees were then indebted beyond the amount represented; and the verdict cannot be disturbed. Judgment affirmed.