Horton v. Smith

Full title: ALBERT HORTON, Appellant, v. CHARLES SMITH, Respondent

Court: Court of Appeals of the State of New York

Date published: Oct 9, 1980

51 N.Y.2d 798 (N.Y. 1980)

433 N.Y.S.2d 92

412 N.E.2d 1318

Opinion

Argued September 5, 1980

Decided October 9, 1980

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, DAVID F. LEE, JR., J.

Joseph T. Kehoe for appellant.

John Rittinger for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

We agree with the Appellate Division that the police officer's testimony as to the point of impact was "without objection on the part of plaintiff".

When a timely objection is not made, the testimony offered is presumed to have been unobjectionable and any alleged error considered waived. (CPLR 4017; 4 Weinstein-Korn-Miller, N Y Civ Prac, par 4017.05, at pp 40-87 to 40-88.)

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

Order affirmed.