
    EXNER, Respondent, v. O’GARA, Appellant.
    (City Court of New York,
    General Term.
    May, 1901.)
    Action by Edmund Exner against Thomas O’Gara.
    Jas. C. Quinn, for appellant. Chas. W. Philipbar, for respondent.
   O’DWYER, J.

No order denying the motion for new trial appears in the appeal book, and the appeal must therefore be determined solely upon defendant’s exceptions taken during the trial, and the only exception called to our attention is that to the ruling upon the question addressed to the witness Boyle. The accident occurred on the 7th day of August, 1899, and was caused by the defective condition of the oilcloth on the stairway in question, and this witness testified that he went with the defendant in September, 1899 (the date he did not know), and examined the stairs from the top to the bottom. The record shows the following proceedings: “Q. What did you find, as the result of your examination as to the stairway leading from the second to the third story, as to the condition of the oilcloth? (Objected to. Objection sustained. Exception.) A. I don’t know when the oilcloth was put down. It appeared apparently new.” The defendant’s liability was to be determined by the condition of the oilcloth previous to and at the time of the accident. Its condition in September, long after the accident, had no relevancy upon the issue, and the ruling of the court was right There is nothing in the ease to show that the oilcloth was in the same condition in September, 1899, as it was on August 7, 1899, or previous thereto. Furthermore, it appears from the testimony of this witness that at the time he examined this oilcloth it appeared apparently new. The exception is without merit, and the judgment must be affirmed, with costs. Judgment affirmed, with costs.

CONLAN and HASCALL, JJ., concur.  