
    Mulcahy & Gibson, Inc., Respondent, v. National Surety Company, Appellant.
    First Department,
    May 7, 1915.
    Trial — failure to object to misconduct of counsel — when verdict should not be set aside.
    Where no objection was taken on behalf of the plaintiff to the conduct of the defendant’s counsel during the trial before a jury, or on a motion to set aside a verdict for the defendant upon all the grounds mentioned in section 999 of the Code of Civil Procedure, the court of its own motion should not set aside the verdict on the ground that the counsel was guilty of misconduct even though his acts were in bad taste and would have justified admonition and censure.
    Appeal by the defendant, National Surety Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1915, setting aside the verdict of a jury in defendant’s favor and granting a new trial.
    
      Frederic R. Coudert, for the appellant.
    
      James A. Foley, for the respondent.
   Hotchkiss, J.:

The plaintiff was a subcontractor under the principal contractor for painting the elevated steel structure of portions of the subway railroad in Queens county, and one Richman was a subcontractor for the work under the plaintiff. A clause of the contract provided that if the contractor should abandon the work, or should refuse or neglect to prosecute it with a force sufficient in the opinion of the principal to insure its completion within a certain time, or if the work should not be done according to contract, the principal should by a three days’ written notice have the right to notify the contractor to discontinue, and thereupon after the expiration of such three days, the contractor should discontinue and the principal might enter upon and take possession of the work and the plant used in connection therewith and itself complete the work or contract for its completion at the expense of the contractor.

The action is on a bond given by Richman for the faithful performance of his contract, and the issue was whether Rich-man had abandoned the job or whether plaintiff had unjustifiably prevented him from continuing it. The plaintiff moved to set the verdict aside upon all the grounds mentioned in section 999 of the Code of Civil Procedure, including the ground that it was against the weight of evidence, which motion the court took under consideration and subsequently granted the motion to set the verdict aside, not upon any of the grounds above specified, but, as recited in the order, because it appeared to the learned trial justice that by reason of the conduct of counsel for the defendant a fair trial of the issues tendered by the plaintiff was made impossible.” On the issue presented by the pleadings and litigated at the trial, the testimony fairly raised a question of fact which the jury determined in defendant’s favor, and, after a careful reading of the record, it is impossible to say that this verdict was against the weight of evidence or that the trial court would have been justified in setting the verdict aside on that ground. Nor does it appear that in the progress of the trial there was any error which would have justified the setting aside of the verdict. It is apparent, therefore, that the trial court was right in refusing to disturb the verdict on any of the grounds on which the motion to set it aside was based. The only question before us, therefore, is whether the court was right in setting aside the verdict on the grounds specified in the order. A careful examination of the portions of the record to which we are referred as evidence of the alleged improprieties of defendant’s counsel do not at most reveal anything worse than a somewhat excessive pertinacity in attempting to introduce a fine of testimony which the learned trial justice deemed immaterial or irrelevant, and remarks of counsel on the exclusion of such evidence, which remarks were certainly in bad taste and might well have justified admonition and censure from the court, but were not in my opinion such as to justify the suspicion that they affected the verdict in the slightest degree. But, however this may be, the conduct of the defendant’s attorney was not the subject of any objection or exception or motion on the part of the plaintiff at any time during the trial. On the contrary, the trial proceeded and the case went to the jury without any suggestion from the plaintiff that its rights had been jeopardized by any of the improprieties now complained of. The plaintiff, having thus sat by and taken the chances of a verdict in its favor, could not thereafter be heard to urge grounds of objection which, if they had any existence, had not been brought to the attention of the court during the trial. In these circumstances it must certainly follow that the court itself could not, as it seems to have done, sua sponte, set aside the verdict on any such ground.

The order must, therefore, be reversed, with costs, and the verdict reinstated.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with costs, and verdict reinstated.  