MAXON INTERNATIONAL v. INTERNATIONAL HARVESTER COMPANY

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division ( 82 A.D.2d 1006), to which we add only that much of what plaintiff has argued before us is beyond the theory of the case as presented to the jury in a charge to which no exception was taken and, therefore, cannot be considered by us (cf. Bichler v Lilly Co., 55 N.Y.2d 571).

Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.