
    Edwin W. Spencer, Respondent, v. Charles G. Saporito, Appellant.
   The action is by a motorcycle police officer to recover damages for injuries sustained because of defendant’s negligence, resulting in a collision between their motor vehicles. The plaintiff was in the performance of his duties in pursuing a speeding car and was about to pass defendant’s car when defendant, without giving a signal, first veered to the left and then turned sharply to the right to drive into a garage. There was no exception to the charge of the court on the subject of contributory negligence. The theory now advanced by appellant was not raised on the trial or presented to the jury. The question of the contributory negligence of the plaintiff was one of fact. (McDade v. International Ry. Co., 235 N. Y. 11; Hall v. Hepp, 210 App. Div. 149.) Judgment for plaintiff unanimously affirmed, with costs. Present — Lazansky, P. J., Carswell, Tompkins, Davis and Johnston, JJ.  