FIRST DEPARTMENT, FEBRUARY TERM, 1903. [Vol. 80. by them in the management of the corporation. Objection was made to this testimony. The objection was overruled and the testimony received. The basis of the objection was that it was immaterial. The testimony was immaterial to any issue presented by the pleadings. The plaintiff, however, nowhere claimed upon the trial that it was prejudiced by the introduction of such testimony. Its sole complaint was that it was immaterial as bearing upon any issue. Upon this appeal it is argued that it was not only immaterial, but incompetent, improper and prejudicial. It was the duty of counsel to call the court's attention to the ground of objection. Had the court's attention been called thereto, doubtless it would have excluded it or it might have been withdrawn, (Turner v. City of Newburgh, 109 N. Y. 301.) The question as now sought to be presented was not raised. (Atkins v. Elwell, 45 N. Y. 753; Charlton v. Rose, 24 App. Div. 485.) When the objection was made that the testimony was immaterial it was conceded to be competent. (Ward v. Kilpatrick, 85 N. Y. 413.) Assuming, however, that error could be predicated of this ruling, it appears that at the close of the charge counsel for the plaintiff asked the court to charge that the amount of Mr. Flaminer's salary had no bearing upon the issues in this action, and the court so charged. It was within the defendant's right to ask that this testimony be disregarded. (Platner v. Platner, 78 N. Y. 90.) Counsel did not ask that it be disregarded, but he asked the court to charge that it had no bearing upon the issues. The court granted to the counsel all the relief in respect to such testimony which was asked to be given. He might have asked that such testimony be stricken from the record; that the jury be instructed to disregard it, and request such charge as would eliminate, so far as was possible to have eliminated, any harmful results which may have resulted from its introduction. Counsel, however, contented himself upon this subject with the request which he made and which was charged, and as he obtained with respect to such testimony all that he asked, he ought not now to be heard to complain because he did not ask more, or all, to which he was entitled. If, therefore, error was committed in receiving it, it was cured by the request which was made as relief was granted to the full extent to which the plaintiff asked. It is further objected that counsel was permitted to read in evi App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1903. dence the answer, sworn to by John Groh. The record shows that the answer was introduced in evidence, and counsel objected upon. the ground that "it is evidence for the plaintiff in his own behalf.” The objection was overruled and exception taken. Counsel for the plaintiff then asked, "Does your Honor admit it as evidence of the facts stated in it?" The Court: "No; it is not entitled to be regarded as evidence of the fact." Plaintiff's counsel: "It is for that purpose my friend offers it, because it is before the Court for the trial of the issues and not for the facts contained in it." The Court: "I will receive it as one of the pleadings in the case." Counsel did not object to this ruling of the court, which simply received the answer in evidence as one of the pleadings before the court. He is to be deemed, therefore, as acquiescing in this holding of the court, that for this limited purpose it might be properly considered. The court expressly excluded it as evidence of the facts stated in it. At the close of the case and before charging the jury, the court called the parties' attention to the reception of the answer in evidence, and stated that if plaintiff stood upon the objection and exception, the answer would be stricken out, and further stated to counsel for the defendant that he had a perfect right to comment upon the pleadings before the jury. Defendant's counsel then stated: "Very well, I will withdraw it." The court then stated the qualification under which it was first admitted, and counsel for the defendant said: "I may comment on it to the jury," to which the court replied: "Oh, yes, you have a perfect right." Counsel for the plaintiff made no objection to this disposition of the matter, and took no exception to the ruling of the court thereon. Consequently he must be considered as having acquiesced in such ruling, and may not now predicate error of it. It is urged upon our attention that counsel for the defendant commented upon the facts set forth in the answer before the jury and made an argument based thereon. Such fact does not appear in anything contained in the record. If counsel's summing up to the jury was improper in any respect, the only way any question could be presented arising thereon was for the plaintiff to have called the attention of the court to the improper matter, taken an exception thereto and inserted the language, claimed to be improper, in the record, so that the court, upon the appeal, might see that the exception thereto was good. There is FIRST DEPARTMENT, FEBRUARY TERM, 1903. [Vol. 80. nothing in this record which raises any such question. Indeed, there is nothing to show that the defendant even referred to the answer in his summing up before the jury. Other exceptions have been urged upon our attention, but all of them are embraced within the discussion already had, and need not further receive attention from us. We do not think that any prejudicial error was committed against the plaintiff which has been the subject of a proper exception, enabling it to be reviewed by this court, or if so, plaintiff has waived any rights which he possessed to object thereto. It follows that the judgment and order should be affirmed, with costs. VAN BRUNT, P. J., INGRAHAM and MCLAUGHLIN, JJ., concurred; O'BRIEN, J., dissented. O'BRIEN, J. (dissenting): Upon the first two causes of action questions of fact were presented to the jury. It was not shown that Groh had actually received the moneys, all that appeared being that he had directed such moneys to be charged up in the cash account as for expenses, and the jury were thus free to infer that the entries were correct, or that the moneys, if wrongfully drawn, were not so drawn by John Groh. Their conclusion, therefore, should not be disturbed in finding no cause of action against the defendant as to these sums. As to the third cause of action, however, I think there should be a reversal, and, therefore, dissent. It appears that the money was withdrawn by check after Flammer had purchased his stock and bonds and became entitled to a majority interest in the corporation, and after he was actually installed as treasurer, for his signature as treasurer was duly affixed to the checks in question. The claim made by the defendant is that such moneys were due to John Groh and to his mother, who, prior to April 17, 1897, were the sole owners of the corporation which had been formed December 30, 1896, and it was sought to be inferred that such moneys were withdrawn for the purpose of paying the son and mother a dividend for the period between January 1 and April 17, 1897, and it was shown that upon receipt of the checks John Groh paid over to his mother a part of the moneys App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1903. obtained. The entry made at the time such checks were given was: "To balance old firm c." A great deal of testimony was introduced under exception to show what the relations between Flammer and the Groh family had been, what he received as an officer of the corporation during the ensuing year, what his friends received, what the earnings of the company were and what percentage thereof the defendant obtained, all with a view to showing that the money received by John Groh on April 17, 1897, which he divided with his mother, was no more than a fair dividend to be declared and obtained by them for the period between January 1 and April 17, 1897. Much of this evidence was evidently incompetent and immaterial, the issue being whether or not John Groh was justified in thus receiving moneys at the time he did. There is no doubt that had such moneys been taken by him prior to April 17, 1897, and at a time when Flammer had no interest in the corporation, such withdrawal would have been entirely justified, since only he and his mother were interested in the concern. Although they may have agreed prior to April 17, 1897, to withdraw from the company such moneys in the way of a dividend, the fact remains that they did not do so, but waited until Flammer had made his purchase of stock and bonds and was installed as treasurer of the company, when it was necessary to obtain his signature, to make the withdrawal. It was not shown that Flammer, when he bought the stock and bonds, agreed to any such payment of dividends, but, on the contrary, regarding such payment as a debt, as it must be considered if due at all, he had expressly stipulated in his written agreement that the defendant Julia Groh should assume all debts. outstanding. The inevitable conclusion, it seems to me, is, that the moneys withdrawn by John Groh on April 17, 1897, were withdrawn without authority and that his estate is liable to the company for their return. I think, therefore, that as to the third cause of action the judg ment appealed from should be reversed, and as to the first and second causes of action it should be affirmed. Judgment and order affirined, with costs. APP. DIV.-VOL. LXXX. 7 FIRST DEPARTMENT, FEBRUARY TERM, 1903. [Vol. 80. JULIUS WILLSEN, as Administrator, etc., of LAWRENCE WILLsen, Deceased, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY, Respondent. Negligence - proper scope of the cross-examination of a motorman as to the manner in which he ran the car. In an action brought to recover damages resulting from the death of the plaintiff's intestate, a boy between five and six years of age, who was run over by one of the defendant's street cars on Lexington avenue between Ninety-sixth and Ninety-seventh streets in the city of New York, the plaintiff's evidence tended to show that the intestate, when running after a ball, fell upon the defendant's track some distance in front of one of the defendant's cars; that the motorman of the car was not looking ahead, but was looking up at one of the windows on the side of the street and that, although he had abundant time in which to stop the car, which was going down grade at a very high rate of speed, he failed to do so. The evidence given on behalf of the defendant tended to show that the motorman was looking straight ahead; that the intestate was standing on the pavement and that when the car was close to him he suddenly ran upon the track and fell down; that the motorman had the car under complete control, but that the child was so close to the car when he went upon the track that it could not be stopped. The motorman was sworn on behalf of the defendant and denied that he was not looking ahead at the time of the accident or that the car was running at a high rate of speed. Held, that it was error to refuse to allow the plaintiff to cross-examine the motorman as to the speed at which he was accustomed to operate his car at particular points on the defendant's line, including the place where the accident occurred; his obedience to orders; the operation of the car in front of a school house located a short distance from the place of the accident; his knowledge that people were accustomed to cross the avenue at places which were not regular crossings; his application of the brake; the statements which he had made concerning the accident and whether, upon a former trial, he had either denied, admitted or failed to deny that he was not looking ahead at the time of the accident, but was looking up at a window on the side of the street. APPEAL by the plaintiff, Julius Willsen, as administrator, etc., of Lawrence Willsen, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of December, 1901, upon the verdict of a jury, and also from an order entered in said clerk's office on the 9th day of December, 1901, denying the plain |