Majority
p. 670W. S. P. Prentice et al., as Executor, etc., Resp’ts, v. W. W. Goodrich, as Receiver, etc., App’lt. (Supreme Court, Appellate Division, Second Department, Filed January 14, 1896.)
Headnote
1. Trial—Directing verdict.It is not error to direct a verdict in favor of plaintiff, where the defendant not only does not ask that the case he submitted to the jury, hut also joins with the plaintiff in a request that the court should dispose of the questions in the case.
2. Same—Motion to strike out evidence.
A refusal to strike out evidence, which is directly responsive to a question to which no objection is made, is proper.
Strong, Harmon & Mathewson, for pl’ff;
John A. Deady, for def’t.
This is an appeal from a judgment for the plaintiffs, entered on a verdict at circuit directed by the court,
p. 671
and from an order denying defendant’s motion for a new trial. The action is to recover rent of demised premises. The answer set up a counterclaim for damages to a subtenant from the plaintiff’s entry on the demised premises for the purpose of making repairs, against which it was alleged the plaintiffs agreed to indemnify the defendant, and also for delay and negligence in the prosecution of such repairs. There can be but little said in disposing of this appeal. The most serious contention of the appellant is that the trial court erred in directing a verdict, and that the case should have been sent to the jury. The perfect answer to this claim is that, as the record shows, the defendant not only did not ask that the case be submitted to the jury, but joined with the plaintiffs in a request that the court should dispose of the questions in the case.
The conversation' with Philips, the general superintendent of the Sandersons, was competent; and further, it was directly responsive to a question to which the defendant interposed no objection. The motion to 'strike out the testimony was, therefore, properly denied.
The judgment and order denying new trial appealed from should be affirmed, with costs.