Kupferberg v. Central Crosstown Railroad — 88 N.Y.S. 366

Majority

p. 366

KUPFERBERG et al. v. CENTRAL CROSSTOWN R. CO.

(Supreme Court, Appellate Term,

May 19, 1904.)

Headnote

1. Trial—Evidence—Failure to Object.

Where defendant’s attorney made no objection at the trial to evidence as to the value of articles destroyed, and on cross-examination drew out from the witness that the prices put on the several articles were wholesale prices, he could not object thereto on appeal.

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

Action by Isaac Kupferberg and others against the Central Crosstown Railroad Company. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.

Edward D. O’Brien, for appellant.

Gross & Sneudaira, for respondents.

There was sufficient testimpny in this case to create a question of fact for the'trial judge to determine as to whether the plaintiffs were free from, and the defendant guilty of, negligence. The criticism of the defendant’s attorney made upon the testimony given as to the value of certain of the articles of property destroyed would be well taken had such testimony been objected to upon the trial, but not only was such testimony admitted without objection by defendant’s attorney, but upon cross-examination he drew out from the witness that the prices put upon the several articles destroyed were not retail, but wholesale, prices, and the whole testimony so given was sufficient to authorize the justice to find that such prices were the value of the goods.

Judgment affirmed, with costs.