Opinion
December, 1904.
James P. Nieman [ Theophilus Parsons with him on the brief], for the appellant.
Henry L. Maxson, for the respondents.
The action is for goods sold and delivered to the defendant, consisting of oats, grain, hay, etc. Even though it was submitted to the jury on the theory that defendant was the undisclosed principal of her husband, this was not inharmonious with the evidence. There was neither demur nor objection by either party. I think that there is no reason to disturb the verdict on this ground. ( Bennett v. Judson, 21 N.Y. 238.) As the appeal is from the judgment only, we should confine our review to the exceptions. ( Third Avenue R.R. Co. v. Ebling, 100 N.Y. 98, 101; Stevens v. Schroeder, 40 App. Div. 590; Ten Eyck v. Witbeck, 55 id. 165, 168; Collier v. Collins, 172 N.Y. 99, 101.)
The first exception is to the question put to Breen, who was in the employ of the defendant and her husband. He testified that he had accompanied the defendant to the bank, and was then asked: "Q. What took place?" This was objected to, and the witness then answered: "A. Sometimes she would go in herself, and sometimes I would go in." The counsel then objected on the ground of immateriality, the objection was overruled, and the defendant then excepted. The question objected to did not necessarily call for an answer that could not be material, competent and relevant. The objection made before the answer to the question was not put upon any ground, nor was it ruled upon or excepted to. The objection on the ground of immateriality was made subsequent to the answer, and no motion was made to strike out the answer. In any event, I cannot see that the answer was prejudicial. The second exception is to the question put to the plaintiffs' witness Houghton, who testifies that the defendant, after her husband's death, came to him saying she wished to sell a wagon. "Q. And you took the wagon and tried to sell it, did you not? A. Yes, sir." Defendant's counsel then objected that it was incompetent, irrelevant and immaterial, and moved to strike out the answer. The motion was denied under exception. This falls within the rule laid down by us in McCoy v. Munro ( 76 App. Div. 437) as follows: "But the objection appears as taken after the question was answered, and if the exception was to the denial of the motion to strike out the answer, the refusal of the court was not error, but the remedy of the defendant was a request for an instruction that the jury disregard it. ( Holmes v. Moffat, 120 N.Y. 159, 163; Smith v. Nassau Electric R.R. Co., 57 App. Div. 152, 154.)"
The goods were not household necessaries, but were hay, oats, grain, etc., used to feed the horses and the mule kept on the premises owned by the defendant, and there was evidence that the defendant was also the owner of these cattle. (See Cutter v. Morris, 116 N.Y. 310.) The mere facts that the goods were charged to the husband, or that bills were sent to him, or that he gave notes for them, were explainable. ( Franklin Coal Co. v. Hicks, 46 App. Div. 441. See, too, Foster v. Persch, 68 N.Y. 400.) The fourth exception, being to the denial of a motion for a new trial, is not available on this appeal. ( Boos v. World Mutual Life Insurance Co., 64 N.Y. 236; Matthews v. Meyberg, 63 id. 656; Third Avenue R.R. Co. v. Ebling, supra.)
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.