Di Prosa v. Post Corp.

Judgment unanimously affirmed, without costs, and motion to amend record to include cross appeal granted. Memorandum: We affirm the order setting aside the verdict on the second cause of action for reasons stated at Trial Term. With respect to the first cause of action pertaining to the claim for severance pay, defendants have failed to preserve for appellate review the issue of lack of consideration for the promise to pay. The sole factual issue submitted to the jury in the court’s charge and in the special questions was whether defendants made an outright promise to pay plaintiff’s salary for 26 weeks or whether they said that the payments would stop if plaintiff got another job within that period. There was no exception to the charge, and the record shows that defendants made no objection during the trial or on the posttrial motions to the legal theory on which the case was submitted. (Appeals from judgment of Supreme Court, Monroe County, Smith, J. — employment contract.) Present — Hancock, Jr., J. P., Doerr, Green, O’Donnell and Moule, JJ.