Kearns v. Waldron

The opinion of the court was delivered by Trenci-iard, J. This is an appeal from a judgment for the plaintiff entered on the verdict of the jury in the District Court of the city of Orange. The action was in the nature of trover and conversion to recover- the value of flagstones belonging to the plaintiff and alleged to have been converted by the defendants to their own use. On behalf of the defendants, it is insisted that a verdict against the plaintiff should have been directed. There was evidence that the defendants admitted to the plaintiff that they carried away the stones, and that the foreman of the defendants had told the foreman of the plaintiff that the stones had been sold by the defendants. [371] While this was denied by the defendants’ witnesses, it was ■clearly a question of - fact for the jury to decide whether the defendants took the flagstones and converted them to their own use. The credibility of witnesses was a question for the jury. Under such circumstances a verdict will not be directed. Baumann v. Hamburg-American Packet (Co., 38 Vroom 250; Hanson v. Pennsylvania Railroad Co., 43 Id. 407. It is urged, in the brief of the appellants, that the evidence of what was said by the defendants’ foreman was inadmissible. So far as appears from the state of the case ho objection was made to this evidence in the court below. On appeal this court will not consider an alleged error not brought to the attention of the trial judge or in any way raised before him. Frisby v. Thomas Jefferson Council, 45 Vroom 213; Osborn v. Gurtner, 46 Id. 224. Furthermore, the alleged error is not among the specifications filed of the determinations of the District Court with respect to which the appellants are dissatisfied in point of law. A rule of this court provides that appeals from the District Court shall be heard and determined solely upon the points •of law so specified. Accordingly, the alleged error has not been considered. The result is that the judgment below should be affirmed.