
    David Schaff et al., Respondents, v. John Miles, Impleaded, Appellant.
    (New York Common Pleas
    General Term,
    December, 1894.)
    An objection that it was error to submit the case to the jury cannot be . raised for the first time on appeal.
    Error cannot be predicated of the charge in the absence of an exception which indicates the objection. - —
    Appeal from a judgment for the plaintiffs, rendered at trial term upon a verdict in their favor, and from an order denying the defendant’s motion for a new trial.
    Action to recover the agreed price of merchandise sma and delivered. The defendants conceded their liability in part, and claimed to«have been absolved from the remainder of the plaintiffs’ demand by return of the merchandise, agreeably to the terms of sale. „
    
      A. Stern, for respondents.
    
      _B. Q. Ohetmood, for appellants.
   Bisohoff, J.

The record does not disclose that any exception was taken on the trial to the admission or exclusion of evidence, and upon evidence, to the sufficiency of which neither party at any time made objection, except that the defendants did so upon a ground so clearly untenable that it was not urged upon this appeal, the facts litigated were submitted to the jury for determination. No injustice is apparent from the verdict in the plaintiffs’ favor, and, having speculated upon the chance of a result favorable to themselves, the defendants should not now be heard to complain that it was error to submit the case to the jury. Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 632 ; Rowe v. Stevens, 44 How. Pr. 10 ; St. John v. Skinner, Id. 198 ; Caspar v. O’Brien, 47 id. 80.

Error is not to be predicated of the charge in the absence of an exception which indicates the excepting party’s objection. McGinley v. U. S. Ins. Co., 77 N. Y. 495 ; People v. Livingston, 79 id. 279, 292. From the absence of an exception to the remark when the learned trial judge, in addressing the jury, said: “ I observe that some of you are business men,” it is apparent that the counsel for the defendants did not disagree until after the 'jury had made known the result of their deliberations. It is not to be inferred from the remark that the trial judge intended to instruct the jury that they were to disregard the evidence, and arrive at a result agreeably to their sense of business propriety, or that the jury so understood it.

The judgment and order should be affirmed, with costs.

Daly, Oh. J., and Bookstaver, J., concur.

Judgment and order affirmed, with costs.  