Dalton 7. Vanderveer. action he was dismissed for lack of jurisdiction. But now, if a plaintiff place an action at law upon the equity calendar, and notice it for trial there, he may not be dismissed out of court. The court may, of its own motion, refuse to hear it and send it to the jury calendar; or, if the court be willing to hear it, the defendant may, nevertheless, by demanding a jury trial, have the cause sent to the jury calendar; and, if he do not so demand, he waives the right to a jury trial and confers jurisdiction upon the court to hear it without a jury; and the rule is the same whichever side has so placed it upon the calendar and noticed it (Code Civ. Pro., § 1009). The cause of action. stated in the complaint in this action being wholly equit able, and in no respect constituting an action at law, the case was properly placed upon the equity calendar and noticed for trial there by the parties. For the same reason, the defendant had no right to demand a jury trial. The case presented by the complaint was not one which entitled the plaintiff to a jury trial, and he was bound by the complaint in that respect. It cannot, therefore, be claimed that he has waived a trial by jury of the cause of action presented by the evidence. Nor can it be said that, by failure to plead in his answer that the defendant had an adequate remedy by an action at law, he has waived his right to so claim now. When chancery existed as a separate court, and a suitor came there asking for equitable relief upon a statement of facts in his bill upon which he could get full, complete and adequate relief in an action at law, the chancellor was free to so inform him and refuse to be vexed by his suit; but, in order that the defendant might so insist and have the suit dismissed on his motion, it was necessary for him to so plead in his answer, in default of which he was held to have waived that defense and submitted the cause to chancery for equitable disposition, provided that court could in the end make any such disposition of it; and such is still the rule Dalton v. Vanderveer. of pleading (Grandin v. LeRoy, 2 Paige, 509; Wiswall v. Hall, 3 Id. 313; LeRoy v. Platt, 4 Id. 77; Truscott v. King, 6 N. Y. 147; Town of Mentz v. Cook, 108 Id. 504; Ostrander v. Weber, 114 Id. 95; Watts v. Adler, 130 Id. 646). But the facts stated in the complaint made the action at bar an equitable one solely, and not of legal cognizance, and, therefore, the defendant could properly have pleaded that the plaintiff had an adequate remedy in an action at law. He was not required to plead that upon the actual facts which the plaintiff had not pleaded the plaintiff could get adequate redress in an action at law. He was only required to plead to the complaint; and the complaint being framed solely for equitable relief, it being found upon trial that the plaintiff is not entitled to such relief, the court cannot entertain the action to give judgment for damages, or to amend the complaint so as to change the action into one at law (Wheelock v. Lee, 74 N. Y. 495; Oakville Co. v. The Double-pointed Tack Co,, 105 Id. 658; Bockes v. Lansing, 74 Id. 437). The complaint is, therefore, dismissed, with costs. NOTE. The difference between the two causes of action is well illustrated in the case of Arnold v. Angell, 62 N. Y. 508; rev'g 35 Super. Ct. (J. & S.) 27. Upon the facts the parties being in contention whether their relation was that of partners or employer and employee,-held, that these were different causes of action, although founded on the same facts. In accordance with this principle it was held in a somewhat similar controversy, that judgment against plaintiff in an action founded on the theory of a partnership would not bar a subsequent action founded on the theory of employment, because the causes of action were different. Marsh v. Masterton, 101 N. Y. 401. Compare White v. Gaines, 25 N. Y, Weekly Dig. 361; Floyd v. Patterson. 72 Tex. 202. Gundlin v. Hamburg-American Packet Co. GUNDLIN v. HAMBURG-AMERICAN PACKET COMPANY. N. Y. Court of Common Pleas, General Term; May, 1894. 1. Trials.] It is within the discretion of the court to deny a motion to strike out a witness's answer responsive to a question not objected to; and if the answer is in part irresponsive, the motion to strike out must be limited to that part. 2. Appeal. An exception to the denial of a motion to set aside a verdict and for a new trial is not taken upon, but after the trial. Such exception cannot, therefore, avail upon an appeal from the New York City Court to the Court of Common Pleas to bring up the question whether the verdict was without or contrary to evidence, in absence of any motion upon the trial for the direction of a verdict, or any exception to the denial of such a motion, if made. 3. The same.] If a charge to the jury, excepted to generally, is objectionable in some respects but not in others, the exception does not present error. 4. Cause of action.] It seems that the cause of action for a carrier's breach of contract to deliver baggage arises at the place to which it was sent. 5. Questions of law and fact.] In an action against a foreign corporation, where jurisdiction of the court depends upon the plaintiff's residence in this State, it is the province of the jury to determine, upon a conflict of evidence, whether or not he is a resident. 6. Trials.] In such a case, in absence of any request by plaintiff for a direction that the jury make a special finding upon the issue of residence, it is not error for the court to direct a general verdict for defendant if the jury find that plaintiff is a non-resident, and at the same time to submit to them the issues arising upon the merits.* 7. Appeal.] Where all the issues are so submitted to the jury and they find a general verdict for defendant, it will be presumed upon appeal, in order to sustain the verdict, that the jury found for defendant on the merits, and for the plaintiff that he was a resident, as he contended. *See note at the end of this case. Gundlin v. Hamburg-American Packet Co. Appeal by plaintiff from a judgment of the General Term of the New York City Court, which affirmed a judgment for defendant upon a verdict in its favor; and also from the affirmance of an order denying plaintiff's motion. to set aside the verdict and for a new trial. The action was brought by Abey Gündlin as a passenger of the defendant, the Hamburg-American Packet Company, to recover for the loss of certain pieces of baggage. The complaint in substance alleged that defendant was a foreign corporation, and had undertaken to transport, as a common carrier, plaintiff's baggage from the city of Hamburg to the city of New York, and had failed to deliver the same. There was no allegation as to plaintiff's residence. The answer consisted of a general denial. The further facts are fully stated in the opinion Abraham H. Sarasohn, for appellant. Everett P. Wheeler (Wheeler & Cortis, attorneys), for respondent. BISCHOFF, J.--No error appears from the record by due exception for which we may reverse the judgment on the merits. Several exceptions appear to rulings on the admission of evidence for defendant. The first was taken to the denial of a motion by plaintiff's counsel to strike out the witness's answer to a question not objected to. It was within the discretion of the court to deny the motion (Platner v. Platner, 78 N. Y. 90); and assuming that the answer was in part irresponsive to the question, the motion to strike out should have been limited to that part (McCabe v. Brayton, 38 N. Y. 196; People v. Beach, 87 Id. 508, 512; Tuomey v. O'Reilly, Skelly & Fogarty Co., 3 Gundlin v. Hamburg-American Packet Co. Misc. R. 302, 306). In the case of the remaining exceptions the ground of objection was not stated (Cruikshank v. Gordon, 118 N. Y. 178; Stouter v. Manhattan Railway Co., 127 Id. 661). The judgment of affirmance of the court below is conclusive upon us respecting the weight of the evidence (Arnstein v. Haulenbeek, 16 Daly, 382; Smith v. Pryor, 16 Id. 169; Rowe v. Comley, 11 Id. 318). Plaintiff must be deemed to have conceded that there was a sufficient conflict of evidence to require the jury's determination of the facts because he did not ask to have a verdict directed in his favor (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Paige v. Chedsey, 4 Misc. R. 183; Meyers v. Cohn, Id. 185); and without an exception to the denial of such a request, it is not within our province to inquire whether there was sufficient evidence to sustain the verdict, or whether the verdict was without or contrary to the evidence (Schwinger v. Raymond, 105 V. Y. 648; Smith v. Pryor, 16 Daly, 169). On appeal to this court from the City Court of New York, an order denying a motion for a new trial brings up for review such questions of law only as are presented by due exception taken upon the trial (Schwinger v. Raymond, 105 . Y. 648); and an exception to the denial of a motion to set the verdict aside, and for a new trial, is not one taken upon, but after the trial (Code Civ. Pro., S 992, 995, 996). Such an exception cannot, therefore, avail on appeal (Matthews v. Meyberg, 63 N. Y. 656; Boos v. World Mutual Life Ins. Co., 64 Id. 236; Grier v. Hazard, 39 State Rep. 74; Carroll v. O'Shea, 2 Misc. R. 437: Meyers v. Cohn, 4 Id. 185). One other exception remains to the charge, which we proceed to notice specially. The action was brought to recover damages for the loss of baggage belonging to a passenger, which defendant, a foreign corporation, was alleged to have received on board its steamship, Polynesia, for transportation from |