
    William H. Crane et al., App'lts, v. Nathan J. Schloss et al., Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 1, 1891.)
    
    1, Appeal—Error in charge—What exception necessary.
    To authorize an appellate court to review alleged errors in the charge of the trial court, arising from an unauthorized assumption of a fact in dispute, or an omission to submit to the jury for their determination any material fact concerning which there is conflicting evidence, an exception alone is not available; it must be accompanied by a specific request for the submission of the fact in dispute to the jury, and if refused, an exception taken.
    8- Same—Review—Exceptions.
    The rule that errors committed upon the trial may, in the furtherance of justice, be reviewed on appeal, although a valid exception he wanting, has reference only to the general term of the court wherein the judgment was rendered, and does not apply to appeals from the city court of New York to the court of common pleas, in which a valid exception is necessary
    Appeal from a judgment and order of the general term of the city court affirming a judgment of that court for defendants, and an order denying plaintiffs’ motion for a new trial upon the minutes.
    
      Howard R. Bayne, for app’lts; Simson Wolf, for resp’ts.
   Bischoff, J.

—Plaintiffs sued to recover the value of certain gas fixtures and supplies alleged to have been sold and .delivered to the defendants at their request, and the defendants resisted the claim upon the ground that the fixtures and supplies were delivered upon trial, and that they were not to retain and pay for the same unless such fixtures and supplies proved satisfactory, which, it was claimed, they did not.

Upon the trial of the action evidence was introduced for the plaintiffs tending to show that with the consent of the defendants their premises were supplied by plaintiffs with four chandeliers for trial and subject to defendants’ satisfaction and approval, and that sometime thereafter, defendants having expressed their satisfaction and approval they directed plaintiffs to supply eight additional chandeliers. The evidence adduced for defendants tended to show that the eight chandeliers were furnished by plaintiffs under the same conditions as the first four. No exceptions were taken to the admission and exclusion of evidence and when both sides rested there was sufficient evidence to have authorized a verdict supporting either version of the contract: and that counsel for the respective parties so considered, is manifest from the absence of a motion to dismiss the complaint or for the direction of a verdict, and upon this appeal it is not contended that under proper instructions by the trial judge the verdict for defendants would not have been authorized by the evidence.

. Appellants’ only complaint is that the trial justice erred in his charge by assuming that the contract was as claimed by the defendants, thus withdrawing from the jury the consideration of the fact whether or not the fixtures and supplies, the value of which was sought to be recovered in this action, were furnished by the plaintiffs under the ■ unconditional promise of the defendants to pay therefor. It must of course be conceded that if defendants’ promise to pay was unconditional it matters not that the fixtures subsequently proved unsatisfactory to them, and they could not escape payment on that ground; while, on the other hand if their promise was to pay only in the event of their approval of and satisfaction With the fixtures, the plaintiffs could not recover in the absence of proof that defendants were satisfied and did so approve,

A careful perusal and consideration of the learned trial justice’s charge would lead to the conclusion that there is force in appellants’ contention and that the justice fell into the error of assuming the defendants’ promise to have been conditional upon their approval and satisfaction. Be this as it may, however, the insufficiency of appellants’ exception precludes us from according the desired relief. Counsel excepted “to so much of the charge of the court as states to the jury that they must find for the defendants if the goods in question were not satisfactoiy to the defendants and tc so much of the charge as states that if the jury determine that the work was not done to the satssfaction of the defendants, then their verdict must be for the defendants.”

Were it conceded that defendants’ promise was conditional upon their approval and satisfaction the instructions would have been proper, and the error complained of rests rather in an omission to charge than in a misdirection. This omission consisted in the failure of the trial justice to call the attention of the jury to the fact that the evidence for plaintiffs tended to show that defendants’ promise to pay for the twelve chandeliers supplied ,was unconditional and made after their approval of the first four, and then to have directed the jury if they should find in accordance with plaintiffs’ version of the contract, to award them the sum demanded.

To authorize an appellate court, however, to review alleged errors in the charge of the trial court, arising from an unauthorized assumption of a fact in dispute, or an omission to submit to the jury for their determination any material fact concerning which there is conflicting evidence, an exception alone is not available. It should be accompanied by a specific request for the submission of the fact in dispute to the jury, and if such request is refused, the exception thereto is available on appeal, otherwise the party complaining must be deemed to have acquiesced in the charge. Mallory v. Railroad Co., 3 Abb. Court of App. Dec., 139 ; Van Vechten v. Griffiths, 4 id., 495 ; Quill v. N. Y. C. & H. R. R. R. Co., 11 N. Y. Supp., 80 ; 32 N. Y. State Rep., 612.

The cases cited by counsel for appellants, to the effect that errors committéd upon the trial may, in the furtherance of justice, be reviewed on appeal, although a valid exception be wanting, have reference only to the authority of the general term of the court wherein the judgment was rendered to award a new trial for such errors. Respecting appeals' from the city court to this court, the power to grant relief for such errors is the same as that of the court of appeals, McEteere v Little, 8 Daly, 167 ; Farley v. Lyddy, id., 514 ; and to authorize a reversal, a valid exception is imperatively necessary. Rowe v. Comley, 2 Civ. Pro., 424.

The judgment and order appealed from must be affirmed, with costs.

Pryor J.

—It is quite true that, in the opening of his charge, the learned trial judge assumed the contract to be conditional on the approval of the lights by the defendants; but, on interruption by the plaintiffs’ counsel, he corrected the statement and distinctly put the case to the jury on the hypothesis that the purchase by the defendants was absolute, saying, ‘‘ if this testimony ” (of the plaintiff that the order was unconditional) “ is believed by you, your verdict will be for the plaintiffs.” Taken in its entirety the charge, including the responses to the requests, is not obnoxious to criticism. With this qualification, I concur in the ppinion for affirmance.

Daly, Oh. J., concurs.  