
    Pincus Spiller, as Administrator, etc., of Maurice Spiller, Deceased, Respondent, v. Louis Goldstein, Appellant.
   Judgment reversed upon the law, and new trial granted, with costs to abide the event, because of the erroneous theory as to damages upon which the ease was submitted to the jury by the trial court. Although no exception was taken, the error is too serious to overlook. The record shows that counsel for appellant took no exception to the part of the charge criticised, and in his brief he says this was done designedly, knowing 'that the charge was wrong. We express our disapproval of such practice. Kelly, P. J., Jaycox, Manning, Kapper and Lazansky, JJ., concur.  