Columbus Circle Hotel Co. v. Dobroczynski

112 N.Y.S. 1049

Opinion

SEABURY, J.

This is an action on a written guaranty. The de_ fendant offered evidence that a condition precedent which the plaintiff had agreed to perform was not performed by it. The appellant urges that the judgment should be reversed, because the alleged condition precedent was not pleaded in the defendant’s answer. The time for the plaintiff’s attorney to have made this objection was at the trial. The record shows that this objection was not urged against the reception of this evidence. We cannot say that, if objection had been made, the trial court would not have excluded it or that the answer would not have been amended to meet the objection. The objection to the reception of this evidence is therefore not available to the appellant. The only other question raised by this appeal is one of fact which was resolved against the appellant by the trial court.

We think the judgment appealed from should be affirmed, with costs.

Judgment affirmed, with costs. All concur.