
    Mount Morris Electric Light Company, Resp’t, v. Horse and Cattle Show, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed February 19, 1894.)
    
    Appeal—Evidence,
    The admission of improper evidence, bearing only upon questions which were taken from the jury by the charge of the court to which no exception was taken, furnishes no ground for reversal.
    Appeal from a judgment entered on a verdict in favor of the plaintiff.
    
      Jay & Chandler, for app’lt; Foster, Hotaling & KlenTce, for resp’t.
   Van Wyck,

J.—The defendants were about giving an open air exhibition of their horse show at night on their up-town grounds, and employed plaintiffs to furnish the electric light for the exhibition. Plaintiffs’ proof shows that the agreement was first, for them to construct such plant as was necessary to furnish fifty-two arc electric lights upon these grounds and to be paid $300 for such construction and $1.50 per lamp per night ; that by mutual consent it was further agreed that the number of lights were to be increased to ninety-two at the same rate per lamp, and they were to be paid the cost of the construction of such additional plant as was made necessary by this increase; that the cost of constructing this additional plant was $470.68 and that defendants were indebted to them in the sum of $1,996.73, which includes these two items of construction, the price of furnishing the light and the costs of certain other changes made at defendant’s request. The defendants’ own evidence shows that these ninety-two lamps were up and lit duri.ng the six nights of the exhibition, for their witness, Huidekoper, a director, says at folio 107: “I was there all the time, almost entirely, during the exhibition, except some time, not in the morning. I was always there afternoons and evenings. The light was the best that could be done, but not satisfactory," and at folio 114, “ I suppose they were lit there during the six nights of the exhibition. They went out a great deal, probably half a dozen times or more for a minute at a time; ” and Hyde, another one of defendants’ directors and witnesses, says, at folio 128: “I don’t think it did much more with niney-two lights in a place (their exhibition grounds) of that size than to make darkness visible.” The defendants did not offer to prove that the ninety-two lights were not put up or kept lit during the six nights of their exhibition, or that the cost of the plant for the first fifty-two lights was fixed at $800, or that the reasonable costs of the plant for the thirty-nine or forty additional lights Was $470.68. However, as to this last item, defendants contend that plaintiffs’ proof was not sufficient, and it must be admitted that it is quite meagre, and could and should have been, made more forcible; still, the evidence of plaintiffs’ witness, Young, after being very much weakened on his cross-examination, is, “I had charge of the construction while the work was being done there. I know of my own knowledge that every one of these lights were put there, I was up there three nights, and I know that all of the men were employed there that were returned on the pay roll,” folio 70, and again, at folio 57, “ I don’t know exactly how much material was used in that thing, I figured it up afterwards, I could not swear to a foot of wire at the time of construction. I knew at that time the number of poles used there, but I cannot now recollect,” and he swore positively on direct, that the reasonable costs of putting up the additional thirty-nine or forty lights, was the $470.63. This evidence was not contradicted in any way by defendants’ proof, and moreover, the judge in his charge, without objection or exception from defendants, instructed the jury as follows: “ There is but one question for you to determine, and that is, what was the contract between these parties ? If the contract was, as is claimed by the Electric Light Company, that they were to furnish the defendants a. certain number of lights and material, and do certain work, why, then, your verdict must be for the plaintiffs in the sum of' $2,102.55,” "the full amount claimed, with interest. And these instructions are justified by the record, which clearly shows that the only really disputed question on the trial was, whether or not. the plaintiffs had guaranteed that these number of lights would be sufficient for the defendants to give exhibitions at night upon their grounds. This question was hotly disputed and was determined adversely to defendants by the jury, who were properly instructed in the charge as follows: “ The defendants, however, claim that the contract Was not only to furnish a certain number of lights, but that the lights should be sufficient to give nightly exhibitions on their grounds. And if you believe that to have been the contract, and that plaintiffs failed to give light sufficient for such exhibitions, why then your verdict must be for defendants.” There was no exception to the charge,' and the ^defendants only made one request and which was charged as requested. The. plaintiffs certainly forced the record with much evidence which has no proper place in this case, but none of such evidence had any bearing or weight in the determination of the question as to what the contract between the partiesw as. And as all other questions upon which it might have had such bearing or weight were taken away from the jury by the judge’s charge, not excepted to, an affirmance of the judgment and order, with costs, must follow.

Ehrlich, 0. J. and Fitzsimons, J., concur.  