
    Riche v. Martin.
    (New York Common Pleas—General Term,
    November, 1892.)
    On appeal from the City Court, this court will inquire only to ascertain if there is any evidence to support the judgment appealed from.
    In an action upon a promissory note made and delivered in exchange for a loan of money of equal amount, the defense was a partial payment. Plaintiff, on cross-examination, testified that subsequent to the delivery of the note, defendant had paid him money, but that it was paid him for wages, was brought out on his redirect examination, under objection. Hold, that the testimony was competent, and a motion to strike it out properly denied.
    Evidence received without objection will not be stricken out on motion as matter of right.
    A defendant should not be permitted to take his chances of a verdict and then urge if it be adverse to him, that he was prejudiced by improper remarks of plaintiff’s counsel. In such case, the proper practice is to object to the case going to the jury, and ask the court to declare a mistrial and order a new trial, and to a denial of the request, an exception should be taken; consenting to the submission of the case to the jury, waives any objection to improper remarks of counsel.
    A motion for a new trial on the ground that the jury were unduly influenced by improper remarks of counsel, will be denied where the case was submitted to the jury without objection.
    Appeal from a judgment of the General Term of the City Court affirming a judgment for plaintiff entered upon a verdict, and an order denying defendant’s motion for a new trial.
    Action by Pasqual Antonio Riche, as payee, to recover upon a promissory note against Lawrence Martin, the maker, the defense being a partial payment.
    
      A. C. Astarita, for plaintiff (respondent).
    
      Abram J. Rose, for defendant (appellant).
   Bischoff, J.

On the trial, it was conceded that the note in suit was made and delivered in exchange for a loan of money of equal amount; the defense of usury was withdrawn, and there remained only that of partial payment. The burden of sustaining it was upon the defendant; his own testimony was that of a party in interest, and therefore, subject to discredit, though not directly impeached. Elwood v. Western U. Tel. Co., 45 N. Y. 549; Gildersleeve v. Landon, 73 id. 609; Honegger v. Wettstein, 94 id. 252. In some respects, defendant was corroborated by witnesses for the defense, but plaintiff’s denial on cross-examination by defendant’s counsel, of ever having been paid anything on account of the amount of the note, presented a sufficient conflict of evidence to require a submission of the facts to the jury for determination. A verdict having been rendered for plaintiff for the full amount of the note, and the court below having affirmed the judgment entered thereon, as well as an order denying defendant’s motion for a new trial, we cannot reverse, though we should differ in our views with those of the court below respecting the weight of the evidence. On appeals from the City Court, our authority to review the evidence, is measured by that of the Court of Appeals under like circumstances (Arnstein v. Haulenbeek, 16 Daly, 382; Smith v. Pryor, id. 169), and it is well settled that the Court of Appeals will inquire only to ascertain if there is any evidence to support the judgment appealed from. Hazman v. Hoboken Land & Imp. Co., 50 N. Y. 53, 55; Green v. Fortier, 80 id. 640.

A number of the exceptions taken to the trial justice’s rulings on the admission of evidence do not present the ground of the objection, and are for that reason unavailable. Cruikshank v. Gordon, 118 N. Y. 178, 186. We shall, therefore, consider those only under which the ground of the objection was stated.

On plaintiff’s cross-examination, defendant’s counsel elicited the fact, that certain sums of money had been paid plaintiff by defendant subsequent to the delivery of the note, and on re-direct examination, plaintiff was permitted to testify, under objection and exception, that these sums were paid him for wages. The probability of the truth of the testimony was a matter to be determined by the jury, but Ave can conceive of no ground why the testimony was not material, relevant and competent, and being so, the motion to strike it out was properly denied.

In rebuttal, plaintiff testified, apparently without objection, to a conversation with defendant concerning an alleged payment of one hundred dollars, and defendant’s counsel asked that the testimony be stricken out, and to the trial justice’s denial of the request, exception was taken. The exception, however, is unavailable, because the ground for the request was not stated, and because counsel could not insist upon compliance with his request as matter of right. Pontius v. People, 82 N. Y. 339, 347.

In view of the facts that counsel for defendant himself during the progress of the trial, offered to allow judgment to be taken against him for substantially the same amount that the facts conceded entitled plaintiff thereto, and that the court -so charged, Avithout objection, it is incomprehensible how defendant could have been prejudiced by remarks of plaintiff’s counsel to the jury that defendant had offered judgment for three hundred and twenty-two dollars, conceding the remarks to have been improper, and counsel’s rebuke deserved. But, be that as it may, if defendant desired to avail himself of such remarks as an objection, counsel should have protested at once against submission of the case to the jury; the court should have been asked to declare a mistrial and to order a new trial, and to a denial of the request, exception should have been taken. Defendant should not be permitted to take his chances of a favorable verdict, and then urge, if the result of the jury’s deliberations prove adverse to him, that he was prejudiced. Having consented to the submission of the case to the jury, any objection to improper remarks of counsel for plaintiff was waived, and the motion for a new trial on the ground that the jury was unduly influenced .because of them, was properly denied.

The judgment and order appealed from are affirmed, with costs.

Bookstaver and Pryor, JJ., concur.

Judgment affirmed.  