Opinion
June 10, 1997
Appeal from the Supreme Court, New York County (Walter Schackman, J., and a jury).
BAII's present argument that the court erred in its apparent authority charge, or, in the alternative, that there was insufficient evidence of its subsidiary's executives' apparent authority to bind it to any agreement, is unpreserved either by exception to the charge or by a motion directed to the sufficiency of the evidence, and we decline to consider it ( Douglas Elliman-Gibbons Ives v. Kellerman, 172 A.D.2d 307, lv denied 78 N.Y.2d 856). That there was some discrepancy in the testimony with regard to additional compensation in the form of an equity percentage in the subject real property does not render the terms of the oral agreement indefinite, inasmuch as there was clear testimony as to the $250,000 fee that plaintiff sought, which was the only compensation as to which the jury was charged. The court's questioning was designed to clarify the issues and did not amount to the type of repeated prejudicial intrusions that have been found to prevent the jury from considering the evidence in the "`calm untrammelled spirit necessary to effect justice'" ( Campbell v. Rogers Wells, 218 A.D.2d 576, 579). We have considered BAII's other contentions and find them to be either unpreserved or without merit.
Concur — Murphy, P.J., Milonas, Rosenberger, Wallach and Andrias, JJ.