The complaint sets out two causes of action, one for work and services in filling and rough-grading of certain streets, and the *809other for work, services and materials supplied in constructing, regulating and grading Sterling avenue in the city of Yonkers. The case was carefully tried, and the questions of fact were submitted to the jury under a charge to which there are no exceptions, all of defendant’s requests to charge having been acquiesced in by the court, with some modifications, to which no exceptions were taken. On this appeal the defendant urges a number of points, all relating to the facts, but none of them appeal to us as affording justification- for a reversal of the judgment and the granting of a new trial. The charge of the court, to which no exceptions are taken, becomes the law of the case, and if the evidence is sufficient to support the necessary findings of fact, no reason for the reversal of a judgment exists, and that is the situation by which we are confronted here, if we may except a slight error appearing in the first cause of action. The contract alleged by the plaintiff in the first cause of action was that he was to make certain fills, aggregating 6,000 cubic yards, for which he was to have $2,000; that in addition to this he was to have thirty-four cents per cubic yard for all filling in. excess of this 6,000 cubic yards covered by the $2,000. The plaintiff says he filled in 6,750 cubic yards, which would entitle him to $2,000 for the 6,000 cubic yards, and $255 for the 750 cubic yards, or a' total of $2,255, on which he acknowledges payment of $1,250, leaving a balance óf $1,005. The jury evidently misunderstood the exact terms of the contract, and figured the 6,750 yards of filling at thirty-four cents per cubic yard,1 reaching a ■ total of $2,295, less the payment of $1,250, or $1,045, and to this extent the judgment is without support in the pleadings or evidence. This does not, however, go to the merits of the case, and the judgment may, with the consent of the plaintiff, be modified by striking out $40 from the recovery on the first cause of action, and, as thus modified, affirmed. In the event of the plaintiff refusing to consent to such modification, then the judgment should be reversed and a new trial granted.
The objections urged by the defendant on this appeal are, for the most part, first called to the attention of the court here. For instance, it is now urged that the plaintiff’s proofs as to the amount of the fill was hearsay ; that he brought no books, papers or records of the amount of the fill, and that as he was not present he could *810not know of his own knowledge. The practical difficulty with this objection is that the plaintiff waspermitted to testify to the amount of the fill without objection or exception, and that .his testimony was more fully developed on cross-examination, so that it is clear that there is evidence in support of the verdict, and if it is not the best evidence, it is at least such evidence as the defendant acquiesced in, and it cannot now be heard to object for the first time.
The judgment should be modified as indicated above, and as so modified the judgment and order appealed from should be affirmed, without costs; otherwise, the judgment and order should be reversed and a new trial granted, costs to abide the event.
JETirschberg, P. J., Jenks, Thomas and Miller, JJ., concurred.
. Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate that the judgment be modified in accordance with opinion, in which event the judgment, as modified, and the order are affirmed, without costs.