Opinion
October 29, 1937.
Present — Hagarty, Carswell, Davis, Adel and Taylor, JJ.
On appeal by defendant, in an action on a non-negotiable promissory note, from a judgment for plaintiffs entered December 23, 1936, judgment unanimously affirmed, with costs. The note was concededly made, was dated March 1, 1926, and was due ten years from date. Defendant paid interest on it without objection or protest for nine years, but refused to pay the principal and one year's interest at maturity, and, when sued, pleaded want of consideration. On the proofs of both parties this defense was without substance or merit, and as a matter of law was not established. Defendant urges as reversible error (1) that the trial court, by comment and conduct, deprived him of a fair trial, and (2) that the trial court refused to charge as defendant requested. On the whole case, there was no question for the jury as to defendant's liability, and plaintiffs' motion for a directed verdict, which was not passed upon by the trial court, should have been granted. If there was error in either or both matters complained of, such error is not available to defendant. Errors in rulings and instructions, or even misconduct, of the trial court are harmless and constitute no ground for reversal where the party excepting thereto was not entitled to prevail in any event. ( Gotham Const. Corp. v. City of New York, 233 App. Div. 699, 700. See, also, Von Au v. Magenheimer, 126 id. 257, 269; affd., 196 N.Y. 510; Title Guarantee Trust Co. v. Pam, 232 id. 441, 452.) Appeal from order denying motion to set aside verdict and for new trial dismissed; there is no such order in the record.