Opinion
October, 1934.
Present — Lazansky, P.J., Kapper, Hagarty, Scudder and Davis, JJ.
Judgment in an action to recover broker's commissions for the leasing of real estate unanimously affirmed, with costs to plaintiff, respondent. No opinion. Defendants' appeal from the order entered January 24, 1934, dismissed, without costs, on the ground that the question is now academic. The defendants, appellants, now claim that on the trial prejudicial evidence was admitted under the second cause of action; but the motion to dismiss that cause of action was made on the ground that no evidence had been offered to sustain it, and it was dismissed on that ground; and the trial court at the request of said defendants in effect instructed the jury to disregard all reference to the second cause of action. With this result the defendants were satisfied at the time, for no exception was taken and no further instructions asked. Appeal by the plaintiff from that portion of the judgment dismissing the second cause of action dismissed, without costs, by consent.