Opinion
March, 1916.
Upon this motion for reargument it is urged that the court failed to appreciate appellants' contention that the case was submitted to the jury upon the wrong theory of the defense pleaded and which the evidence tended to establish. Whatever merit there may be in the point, we think it is not available to plaintiffs on the appeal as a ground of error for the reason that no objection was made at the trial to the submission of the case on the theory adopted or request to submit it upon any other theory, and no exception was taken which presents the question here. Upon the other grounds urged upon this motion we find nothing that was not fully considered by us or that we think points to any error in our decision. (See 172 App. Div. 931.) Motion for reargument denied, with ten dollars costs.