
    John Ryan, Resp’t, v. Edward J. Conroy et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      filed April 12, 1895.)
    
    Appeal — First instance.
    The point that the court charged as a fact matter as to which the evidence was conflicting, cannot be raised for the first time on appeal.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial., made on the minutes.
    
      Charles F. Tabor, for app’lts ; Wallace Thayer, for resp’t.
   Lewis, J.

The plaintiff brought this action to recover a balance claimed to be due upon the sale and delivery of a quantity of hay to the defendants on the 23d day of August, 1893. After the sale, and before the hay was removed from the plaintiff’s bam,, it was destroyed by fire; and the main question litigated was whether the title to the hay was in the defendants at the time of the fire. The hay at the time of the sale was in two bays in the plaintiff’s barn. He and the defendant Conroy were present in the barn, and there agreed that the plaintiff was to sell, and the defendant Conroy was to purchase, the hay, at $9 per ton, to be paid for upon demand. Conroy paid $10 down, and agreed to come the next week and press and bale the hay. The plaintiff agreed that when the hay was pressed and baled, and he was requested so to do, he would draw it to a railroad station near by, and would board the defendant’s men and teams while the hay was being pressed. After the sale, and before the hay was pressed, the defendant Hyman paid plaintiff $50 to apply on the purchase price. The evidence was conflicting as to whether the entire quantity was sold. Plaintiff’s evidence tended to show that it was all sold. The defendants’ evidence tended to show that there was at the time a quantity of clover hay in one of the mows, and about 200 pounds of old mow burned hay, which was not purchased. The defendants further contended that hay was to be paid for when delivered by the plaintiff at the railroad. The jury, upon evidence which we think was sufficient to sustain their verdict, found that the defendants purchased the entire quantity of hay, and agreed to pay therefor upon demand.

Defendants contend that as the quantity of hay was not known, and the plaintiff concededly was to deliver it at the railroad station, and board the hands and teams while they were engaged in pressing it, it follows that the title to the hay was in the plaintiff at the time of the ñre. The verdict being against the defendants, we do not think their contention can be sustained. The law upon these questions seems to be so well settled that it is not deemed necessary or profitable to refer to the cases. The authorities to which our attention is called by the appellants’ counsel, we think, are clearly distinguishable from this case.

The court, in charging the jury, stated the amount, for which they should render a verdict if they found for the plaintiff. He inadvertently overlooked the fact that there was a conflict in the ■evidence as to the amount of the hay. One witness for the defendants testified that, in his opinion, the quantity of hay was not as large as that stated by the plaintiff’s witnesses. The defendants’ counsel failed to call the court’s attention to this conflict in the evidence, and failed to take an exception to the charge; The difference in amount as estimated by the witnesses was not large. It is too late, upon appeal, for the defendants to avail themselves of this point.

Another question litigated on the trial was whether the defendants were copartners, and as such purchased the hay. The evidence upon this question was quite conflicting. The jury found against the defendants. Upon this question there was sufficient ■evidence to sustain their verdict in that respect

The court charged the jury that the plaintiff could not recover, unless the jury should find that the defendants were partners at the time of the purchase of the hay, or purchased it upon joint account ; holding that, unless the defendants were jointly liable, there could be no recovery in the case. The defendants’ counsel seems to have acquiesced in this view of the law, and failed to •call attention to the error. He now asks for a new trial, so that the case can be presented to another jury with proper instructions upon this question. This court has the power to grant a new trial notwithstanding the failure of the defendants’ counsel to take an exception to the charge, but we do not think that it is so manifest that any injustice was done to the defendants that the case should Re sent back for a new trial because of this error in the charge.

The judgment and order appealed from should be affirmed.

All concur.  