Opinion
Argued May 11, 1982
Decided June 10, 1982
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, PAUL J. YESAWICH, JR., J.
Samuel D. Hester for appellant.
P. David Twichell and Henry S. Fraser for respondent.
Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division ( 82 A.D.2d 1006), to which we add only that much of what plaintiff has argued before us is beyond the theory of the case as presented to the jury in a charge to which no exception was taken and, therefore, cannot be considered by us (cf. Bichler v Lilly Co., 55 N.Y.2d 571).
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.