
    Hubert W. Martin, Respondent, v. Mary E. Coleman, Appellant.
    (New York Common Pleas
    General Term,
    December, 1895.)
    Whether to strike out illegal evidence admitted without objection is a question of judicial discretion, and a refusal to strike it out presents no error on appeal. The party prejudiced by such evidence should request an instruction to the jury to disregard it.
    Appeal from judgment of the General Term, City Court, affirming judgment on verdict.
    
      II. U. Snedeker, for appellant.
    
      Myron II. Oppenheim, for respondent.
   Pryor, J.

In an action for damages from an overflow of water on defendant’s premises the questions are: Whether the evidence sufficed to authorize the jury to find that the injury was the effect of the defendant’s negligence; and whether, by due objection and exception, she shows error in the proof of damages.

Beyond doubt the plaintiff presented & prima facie case of injury from defendant’s negligence. The escape of the water from premises of which she was in the exclusive occupancy and control of itself raised an inference of negligence against her. Moore v. Goedel, 34 N. Y. 527, 532; Breen v. R. R. Co., 109 id. 297. But, indeed, the defendant frankly owned, immediately on discovery of the injury, that it was imputable to the fault of her employees, and the only fact she controverted was the extent of her liability. She now insists that her admission is ineffectual because opposed by a physical impossibility. But we discover no mechanical obstacle to the escape of the water from the washstand to the ceiling whence it dripped upon the defendant’s goods.

The affirmance of the judgment in the City Court is conclusive, on this appeal, of all questions of fact upon conflicting-evidence. Clark v. Smith, 9 Misc. Rep. 164.

In proof of Ms damages, the plaintiff was asked, “To what extent were those-goods damaged? Was it a quarter or a ■ h'alf as. to value ? ” The question being objected to-“on the ground that it was not. tlm proper -way of proving damages,” ■ no answer was returned. Thereupon the court .inquired, “What was your loss in dollars and cents?” The witness, responded, “ Five hundred dollars.” Then, for the. first time, the defendant challenged the- evidence because giving merely the conclusion of the witness. The court replied, “ The question is answered, and I will allow it to stand.”

The evidence was clearly incompetent. Morehouse v. Mathews, 2 N. Y. 514 ; Roberts v. R. R. Co., 128 id. 455, 464. But, to the question eliciting it no’objection was interposed ; what remedy then Was ojien to defendant ? Obviously, a motion to strike out. In terms this motion was not made.'; hut. assuming, as the court seems to have understood, that the objection was in effect such, motion', still whether to grant .it was a matter of judicial discretion ; and tó jirésént the, point of error in the evidence, the defendant should have requested a direction to the jury to disregard it. Platner v. Platner, 78 N. Y. 90, 101; Pontius v. People, 82 id. 338, 347. No . such -instruction haying been asked, the jiresenee" of the evidence is not available error.

If the appellant is precluded from recourse to the error b,y a technicality,, it .is also true that the amount of< damages awarded against her is abundantly supported by other'evidence which she in no way challenged and of which she" now makés no comjilaint. . ’ ’

' Judgment affirmed, with costs.

Daly, Oh. J., and Bisohofí1, J., concur.

1 Judgment affirmed, with costs.  