Brooker v. Filkins — 55 N.Y. St. Rep. 167

Majority

p. 167

Smith A. Brooker et al., App’lts, v. John Filkins, Resp’t.

(City Court of New York, General Term,

Filed October 20, 1893.)

Headnote

Trial—Summing up.

An objection that the trial court in an action for conversion erred in permitting the counsel for the defense in summing up to refer to the effect that a verdict would have on defendant is not available on appeal where it does not appear that the attention of the trial court was called to such conduct on the part of counsel.

Appeal from judgment in favor of defendant, entered on verdict.

Carpenter & Hassett, for app’lts ; Abner C. Thomas, for resp’t.

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 liis own use.

On the trial of this action the jury found a verdict for defendant.

The counsel for appellants insists 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.

Jhe case was properly submitted to the jury, and none of the exceptions would warrant us in disturbing their verdict.

Judgment affirmed, with costs.

Ehrlich, Ch. J., and McCarthy, J., concur.