Broyer v. Ritter

Theaction assumed the form of an interpleader suit between rival brokers to determine which of them earned the brokerage on the sale of certain real property on the corner of Tenth avenue and Ninety-eighth street, in the city of New York. The jury found that the plaintiff was the procuring cause of the sale and gave him a verdict. The evidence, though not strong, was sufficient to warrant the jury in finding as they did. The conflicting proofs required the trial judge to submit the cause to the jury. Neither side asked him to direct a verdict. No error was committed at the trial. The attention of the trial judge was not called to the fact that twenty dollars costs were allowed to the defendant in the original suit on his application for the order of interpleader, and that this sum was deducted from the fund on deposit and in dispute. Indeed the trial judge was permitted to charge the jury, without objection, that the party succeeding (whether plaintiff or defendant) was entitled to a verdict in his favor for §330 with interest. The defendant got the benefit of this charge, and if he had succeeded would have recovered a verdict for §330. It is too late now to raise this question for the first time upon appeal. The error might and no doubt would have been corrected in the court below if the attention of the trial judge had been called to it. Corn. Exch. Bk. v. Blye, 7 N. Y. Supp., 434 ; 27 N. Y. State Rep., 297, and cases cited. The appellate court is to review such errors of the trial judge as are excepted to in the court below and the court was not put in error in regard to the twenty dollars complained of here. To prevent any possible injustice, however, the judgment will be modified by deducting the twenty dollars aforesaid, and, as modified, affirmed, with costs. See Belgard v. McLaughlin, 9 N. Y. State Rep., 40.

McAdam, Gh. J., Ehrlich and Van Wtck, JJ., concur.