City of New York v. . Matthews
New York Court of Appeals
Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 20, 1913, upon an order reversing a judgment in favor of plaintiff for part of the claim entered upon a verdict directed by the court and directing judgment in its favor for the full amount claimed.
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Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 20, 1913, upon an order reversing a judgment in favor of plaintiff for part of the claim entered upon a verdict directed by the court and directing judgment in its favor for the full amount claimed. This action was brought on a written contract to recover the stipulated annual payments to be made by the defendants for the privilege of constructing and maintaining a tunnel beneath Livingston street in the borough of Brooklyn to connect two buildings owned by the defendants on…
1Opinion of the CourtMiller, J.
We are unable to assent to the first two grounds of the decision of the. learned Appellate Division. By not objecting the parties consented to try all of the issues at Trial Term. The only objection claimed by the corporation counsel to. raise, the question of the proper manner of trial of the. issues was one taken to. the admission of testimony to show the alleged mistake, but that objection was plainly insufficient to raise the point. Having consented to the manner of trial, the plaintiff should not thereafter have been heard to assert that a different method should have been pursued.
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2Cited by5 opinions
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