Schwabeland v. Buchler — 63 N.Y. St. Rep. 526

Majority

p. 526

Henry Schwabeland et al., Resp’ts, v. Herman Buchler et al., App’lts.

(New York Common Pleas, General Term,

Filed November 15, 1894.)

Headnote

Appeal—First instance.

An erroneous assumption by a judge in charging the jury, to be available, must be objected to at the time.

Appeal from a judgment in favor oE plaintiffs.

Henry L. Roth, for app’lt; Forster, Hotaling & Klenke, for resp’ts.

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 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.