Opinion
March 8, 1939.
Present — Sears, P.J., Crosby, Lewis, Taylor and Dowling, JJ.
Judgment and order affirmed, with costs. Memorandum: Upon an appeal by an executrix from a judgment entered upon a jury's verdict awarding to the plaintiff a sum quantum meruit for services rendered the testator in accord with an alleged ante mortem agreement, the appellant asserts for the first time that the proof submitted upon the trial by the plaintiff-respondent to establish the contract was at variance with the precise terms of the contract alleged in the complaint. Having failed by objection, motion to strike out or otherwise to present that question for ruling by the trial court, it will be deemed to have been waived at Trial Term and cannot be raised in the first instance on appeal. ( Cahill Iron Works v. Pemberton, 48 App. Div. 468, 470-471; affd., 168 N.Y. 649; and see 6 Carmody's N Y Practice, § 346, pp. 276-278, note 10.) Believing the verdict of the jury to have been in accord with the weight of competent evidence and finding no reversible error in the trial court's rulings challenged upon this appeal, we affirm the judgment and order. All concur. (The judgment is for plaintiff in an action for breach of contract. The order denies a motion for a new trial on the minutes.)