wall of its own premises 819 Chestnut Street, Philadelphia, in accordance with plans and specifications prepared by Allabach and Rennis, Inc., engineers, * * *.'
There was no waiver of any right in the wall itself by execution of the contract, but the parties cannot now complain of the method of supporting the wall as specifically shown in plans (Exhibit P-8) in existence when the contract was signed.
VII. Alleged errors of the trial judge in ruling on evidence are not grounds for a new trial.
Since the Motions For New Trial (Documents Nos. 27 and 28) do not mention these alleged errors, a new trial may not be granted for these reasons. See Russell v. Monongahela Railway Company, 262 F.2d 349 (3rd Cir.1958). Since these errors are discussed at length in defendant Tesauro's brief at pp. 2 ff., this brief comment may be useful.
The April 13, 1940, survey by the official surveyor (William H. H. Ogden, Jr.) was properly admitted in evidence (see 28 P.S. §§ 91 & 91b; 28 U.S.C.A. § 1732; Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467, 472-3 (3rd Cir.1950)). Since the survey was admissible, Mr. Stefanco, as a surveyor of Philadelphia (N.T. 16), could explain what the marks on the survey indicated. Furthermore, counsel for Tesauro never moved to strike the testimony complained of
(see N.T. 69 & 90) as the trial judge permitted, using this language at N.T 33: '* * * you can ask him on cross-examination and more to strike at that time' (N.T. 33).
Defendant Tesauro's objections to the ruling on the testimony of Mr. Rennis as a ground for new trial (pp. 2 ff. of Document No. 35) are similarly without merit. See F.R.Civ.P. 51 and Burch v. Reading Co., supra, 140 F.Supp. at pp. 143-4.
There is no merit in the other reasons alleged for a new trial.
For the foregoing reasons, the defendants' post-trial motions will be denied.