
    MILTON J. ROBERTS, Plaintiff and Respondent v. CHARLES C. LLOYD, Defendant and Appellant.
    
      An exception to the instructions of the court to the jury, should be specific, and if general, is untenable.
    
    In this case, where a recovery was sought upon a contract for medical service for a year, at a given price, the trial judge held that the defendant had not proved, nor given evidence that tended to prove, that he had the right, if dissatisfied, to withdraw his child from plaintiff’s professional treatment at the end of six months, as claimed in the answer.
    Entertaining this view, and the answer admitting a contract for a year, the judge instructed the jury to find a verdict for the plaintiff in the sum of $350, with interest which remained due under the contract between the parties as the judge assumed it was proven.
    To said instruction the counsel for the defendant excepted. The exception is untenable because it is a general one, and because on examination of the evidence, it is found to be insufficient to establish the defense in the particulars stated by the judge.
    If there was any other question upon which the defendant claimed the right to go to the jury, it should have been pointed out for consideration by defendant’s counsel.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 7, 1889.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of the jury, and from order denying defendant’s motion upon the minutes for a new trial.
    
      S. F. Kneeland, attorney and of counsel for appellant, argued:—
    The rule to he, that where both plaintiff and defendant seek to take the case from the jury by a motion to the court for dismissal, nonsuit or direction to find a verdict, they elect to consider it a question of law, and an exception to a direction to find against them will not be sufficient to raise the questions sought to be raised in this case, but whenever but one side asks the court to take it from the jury, the other side may rest securely upon an exception to the decision of the court against him without any specific request to charge.
    The leading case on this point is Stone v. Flower, 47 N. Y. 566. The court of appeals there held that where, upon the trial of an action there are disputed questions of fact, a direction by the court to the j ury to find for the defendant is in effect a decision that the plaintiff is not entitled to recover upon any finding warranted by the testimony, and the exception to such direction is sufficient to present the question of law upon appeal, and that the plaintiff is not required to request the court to submit the questions of fact or make a specific charge to the jury. This principle has been followed in a large number of cases, and is the law in this state on this point. If we, at the conclusion of the trial, had asked the court to direct a verdict for the defendant, or for a nonsuit, then we would have consented that the whole question go before the court. It would bring us within the only exception to the foregoing rule, and the exception taken would have been insufficient. The rule as laid down in Stone y. Flower is followed in this court in Miner v. Mayor of New York, 37 Super Ct. (5 J. & S.) 174, and in the court of appeals in Trustees of Easthampton v. Kirk, 68 N. Y. 459. The exception to the rule is shown in Hegaman v. Burr, 41 Super. Ct. (9 J. & S.) 423, and in several cases in the court of appeals. Chief Justice Daly, in Waters v. Marrin, 13 Daly, 57, states the rule clearly, and shows it to be directly applicable to the case at bar. The learned Chief Justice, on page 58, says: “ The case on which the defendant’s counsel relies' as controlling (Stone v. Flower, 47 N. Y. 566), was a case in which the court directed the jury to find a verdict for the defendant, to which the plaintiff excepted, and in which it was held that if upon any finding warranted by the testimony the plaintiff would have been entitled to recover, this ruling was erroneous; and that the point was sufficiently raised by an exception to the court directing a verdict for the defendant. This ease would have been applicable if' the defendant in the present case had excepted to the judge’s directing the jury to find a verdict for the plaintiff. If the defendants had taken such an exception, which they did not, they would under it, upon this authority, have been entitled to a new trial if it appeared that upon any finding warranted by the evidence the defendants could have recovered.”. I cite this opinion specially for the purpose of showing that the rule applies as well where the court directs the verdict for the plaintiff and the exception is made by the defendant, as in the case of Stone v. Flower, where the direction is made for the defendant and the exception taken by the plaintiff.
    
      Warner & Frayer, attorneys, and Eugene Frayer of counsel, for respondent.
   By the Court.—Freedman, J.

As the verdict of the jury shows that upon the second cause of action their finding was for the defendant, it is only necessary to consider the disposition which was made of the issues concerning the first^ cause of action. Upon this branch of the case the trial judge held that the defendant had not proved, or given evidence that tended to prove, that he had a right, if dissatisfied, to withdraw the child from plaintiff’s professional treatment at the end of six months. Entertaining this view, and the answer admitting a contract for a year, the judge instructed the jury to find a verdict for the plaintiff in the sum of $350 with interest which remained due under the contract between the parties as the judge assumed it was proven.

To such instruction the counsel for the defendant excepted. The exception is untenable because it is a general one, and because on examination the evidence is found to be insufficient in the particulars stated by the judge. If there was any other question upon which the defendant claimed the right to go to the jury, it was the duty of the counsel for the defendant to point it out and to insist upon its consideration.

What then occurred is as follows, viz.: Defendant’s counsel asked that the jury should be charged that if they should find “ that the agreement was, at the time of the payment of the first $350, and of the making of the contract for one year, that a certain instrument should be made within six weeks, and if that instrument was not made, then the plaintiff had broken his contract, and was not entitled to recover anything whatever.” The court refused so to charge and said: “I do not think that the evidence would warrant any such conclusion. ' The mere expectation on the part- of the doctor that he would have an instrument of that kind, or that the child would be able to walk in six weeks, or in any other time, as testified to by the witness for the defense, does not constitute an agreement.”

To this ruling no exception was taken, nor was a request made that the question of fact therein referred to should be submitted to the jury. By doing neither and failing to do both, the defendant acquiesced in the ruling and waived the right, if any he had, to have such question submitted.

This being so, and the general exception taken to the direction of the verdict applying only to the specific reasofi assigned for the direction, and the reason so assigned being a good and valid one, the decision of The Trustees of East Hampton v. Kirk, 68 N. Y. 459, does not apply, but the case is controlled by the principle of the decisions of Muller v. McKesson, 73 N. Y. 195, and Ormes v. Dauchy, 82 N. Y. 443.

Upon the whole case nothing appears which constitutes ground for reversal.

The judgment and order should be affirmed with costs.

Sedgwick, Ch. J., and Ingraham, J., concurred.  