Opinion
May, 1922.
Present — Blackmar, P.J., Rich, Kelly, Manning and Kelby, JJ.
Order denying plaintiff's motion to set aside the verdict and for a new trial unanimously affirmed, without costs. The testimony of defendant alleged to have been received in violation of section 831 of the Code (Civil Practice Act, § 349) was not necessary to prove the charges made. Plaintiff testified on her direct examination as to the same subject-matter. It further appears that all of the so-called improper evidence was offered and received without objection on the part of plaintiff, and presented to the jury with her acquiescence. It is too late to raise the question on appeal, especially in view of the situation disclosed by this record, where it appears that plaintiff was given a fair trial and had every opportunity to make out her defense. (See Valentine v. Valentine, 87 App. Div. 156; Lunham v. Lunham, 133 id. 215.)