
    KNEELAND et al. v. ARNOLD et al.
    (Supreme Court, Appellate Term.
    May 19, 1904.)
    1. Trial—Instructions—Failure to Submit Issue.
    Though plaintiff was entitled to go to the jury on a certain question, failure to submit it will not be deemed error, in the absence of a request.
    V 1. See Trial, vol. 46, Cent. Dig. § 837.
    Appeal from Municipal Court, Borough of' Manhattan, Sixth District.
    Action by Stillman F. ICneeland and others against George W. Arnold and others. From a judgment for plaintiffs, defendants appeal. Affirmed.
    Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
    Weeks, Battle & Marshall, for appellants.
    Kneeland, La Fetra & Glaze, for respondents.
   SCOTT, J.

The defendant Arnold showed by uncontradicted evidence that he was the owner and holder of the note for $150, which he produced upon the trial. Since Cassidy was the maker and not the indorser of the note, it was not necessary to make demand upon him. The note is therefore available as a set-off in favor of the defendant Arnold, but not in favor- of the other defendants. If defendants had asked to go to the jury on the question of the value of plaintiffs’ services in procuring the vacation of the order of arrest, the court would have been bound to submit that question. The record does not show that any such request was made.

The judgment against the defendant Arnold should be reduced by the sum of $150.75, the amount of the note, with interest, to the date of trial, and, as so modified, is affirmed, without costs. " The judgment against the other defendants is affirmed, with costs. All concur.  