Majority
p. 908Milton Josiah Roberts, Resp’t, v. Charles G. Lloyd, App’lt. (New York Superior Court, General Term, Filed January 7, 1889.)
Headnote
1. Practice—When defendant deemed to have waived his bight HAVE QUESTION OF FACT SUBMITTED TO THE JURY.Where no exception is taken by the defendant to the ruling of the court, and no question is made that the matters of fact therein referred to, be submitted to the jury, Meld, that the defendant by his failure acquiesces in the rulings, and waives any right he has to have the question submitted.
3. Same—When exception untenable.
A general exception taken by the defendant to the instruction of the court directing a verdict for the plaintiff, is untenable.
Appeal frqm judgment entered in behalf of plaintiff upon the verdict of a jury, from order denying defendant’s motion upon the minutes, for a new trial.
E F. Kneeland, for app’lt; Warner & Frayer, for xesp’t.
As the verdict of the jury shows that upon the' second cause of action, their finding was for the defendant, it is only necessary to consider the disposition which was made of the issues concerning the first cause of action. Upon this branch of the case, the trial judge held that the defendant had not proved or given evidence that tended to prove that he had a right if dissatisfied, to withdraw the child from the plaintiff’s professional treatment at the end of six months Entertaining this view, and the answer admitting the contract for a year, the judge instruct
p. 909
ed the jury to find a verdict for the plaintiff in the sum of $350, with interest, which remained due under the contract between the parties, as the judge admitted it was proven. To such instructions the counsel for the defendant excepted. The exception is untenable because it is a general one, and because, on examination the evidence is found to -be insufficient in the particulars stated by the judge. “If there was any other question upon which the defendant claimed the right to go to the jury, it was the duty of the counsel for the defendant to point it out and insist upon its consideration. It then occurred as follows, viz. Defendant’s counsel asked that the jury should be charged that if they should find that the agreement was, at the time of the payment of the first $350, and of the making of the contract for one year, that a certain instrument should be made within six weeks, and if that instrument was not made, then the plaintiff had broken his contract, and was not entitled to recover anything whatever,” The court refused so to charge, and said “I do not think that the evidence would warrant any such conclusion. The mere expectation on the part of the doctor that he would have an instrument of that kind, or that the child would be able to walk in six weeks, or in any other time as testified to by the witness for the defendant does not constitute an agreement.” To this ruling no exception was taken, nor was a question made that the question of fact therein referred to should be submitted to the jury. By doing neither and failing to do both the defendant acquiesces in the ruling, and waived the right, if any he had, to have said question submitted. This being so, and the general exception taken to the •direction of the verdict applying only to the specific reason assigned for the direction, and the reason being so good and valid a one, the decision of the Trustees of East Hampton v. Kirke ( 68 N. Y., 459 ), does not apply, but the case is controlled by the principle of the decisions of Muller v. McKesson ( 73 N. Y., 195 ), and Ormes v. Dauchy ( 83 N. Y., 443 ). Upon the whole case nothing appears which constitutes a ground for reversal. The judgment and order should Ibe affirmed with costs.
Sedgwick and Ingraham, JJ., concur.