Upon a former trial of this action the plaintiff had a verdict, which, on appeal from the judgment entered thereon, was set aside by the General Term for errors of law (see 3 Misc. Rep. 342; 52 N. Y. St. Repr. 1; 22 N. Y. Supp. 738), all of which were obviated on the trial we are called upon to review. The facts, though requiring submission to the jury, appear substantially as they did upon the first trial, and we are, therefore, required upon this appeal to consider ■only the exceptions that appear upon the present record, and these seem to be without merit. The portions of the charge which might bear criticism were not excepted to, so that the trial judge had no opportunity to correct, explain or modify the language used, as he might have done.
The verdict is amply sustained by the evidence, and, according to the law of the case as settled by the court upon the first appeal, the judgment is right, and must, with the order denying the motion for a new trial, be affirmed, with costs.
Present: Sedgwick, Ch. J., and McAdam, J.
Judgment and order affirmed, with costs.