Rock v. White — 67 N.Y. St. Rep. 515

Majority

p. 515

Richard B. Rock, Resp’t, v. James D. White et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed May 14, 1895.)

Headnote

Appeal — Cubing ekbor.

Error in the admission of evidence is cured by striking out such evidence on the motion of the objecting party.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for,a new trial.

Van Alstyne & Hevenor, for app’lts; Robert G. Scherer, for resp’t.

The question raised by the pleadings in. this ease as to whether plaintiff was prevented by unfavorable weather from filling the ice house of defendants, or whether he was slow and negligent in the performance of the contract between the parties, was fairly submitted to the jury by the learned trial court. On the questions of fact thus submitted there was conflicting evidence, and the verdict of the jury ¡cannot be properly disturbed. The error, if any, in admitting in evidence the resolution of the common council of the city of Albany was cured by the striking out of such evidence on the motion of the defendants. Pettee v. Pettee, 77 Hun, 595 ; 60 St. Rep. 529 . If the refusal of the trial court to charge that if 1,100 tons of the ice placed in plaintiff’s ice house came from the district specified in the contract, plaintiff was bound, unless prevented by defendants, to place the same in defendants’ ice house, — as requested, — was an error, such error was subsequently cured by the court’s substantially charging as thus requested. Besides, there was evidence tending to show that plaintiff had harvested large quantities of ice outside of the district described in the contract, and placed the same in defendants’ ice house, defendants consenting. If the amount so harvested was equal to the amount taken from the district specified in the contract, and placed in plaintiff’s ice house, defendants were not injured. We have examined the various other exceptions to the rulings of the learned trial judge in the reception of evidence and

p. 516

'to his charge or refusals to charge, and are of opinion that neither ■of said exceptions require discussion or necessitate a reversal of the judgment.

Judgment affirmed, with costs.

All concur.