
    John McQueen, Respondent, v. John Brown, Appellant.
    Appeal By defendant from judgment' on verdict .of jury rendered in plaintiff’s favor, and from order denying his motion for new trial made on the minutes.
    J. Baldwin Hands, for respondent.
    Robert H. Racey, for appellant.
   Van Wyck, Ch. J.

This cause was tried without an objection or exception-by either plaintiff or defendant, except that defendant had noted an exception to the denial of his motion on the' minutes for a new trial. The defendant did not move fór a nonsuit, nor for a dismissal on the merits, nor did he request the direction of' a verdict in his favor. The action was for a balance for work and labor performed by plaintiff in and about a building belonging to defendant.' The plaintiff testifying, in support- of his contention, that the work was done as alleged, and that the balance was due' and unpaid, while the defendant testified that there was a fixed price for part .of the work, and that he had paid such price, and a further sum for the reasonable value of the other work, and he was corroborated by his fifteen-year-old son. This conflicting evidence on the main issue had to be submitted to the jury, and it would have been error fór the judge to have taken- the case from the jury, even if defendant had properly requested a dismissal or verdict in his favor, and the motion.for new trial was properly ■ denied. The judgment and order appealed from are affirmed, with costs.

Schuohman, J., concurs.

Judgment and order affirmed, with costs.  