Bendix v. Saul — 68 N.Y.S. 800

Majority

p. 800

BENDIX et al. v. SAUL.

(Supreme Court, Appellate Term.

February 25, 1901.)

Headnote

1. Trial—Failure to Move to Dismiss.

Where at the close of the case no motion was made by defendant for a-dismissal of the complaint, such omission must he regarded as a concession on his part that there were Issues of fact to he tried.

2. Same—Conflicting Testimony—Findings—Appeal and Error.

Where the only point litigated in an action was whether the contract relied on by plaintiff was in fact made, and the testimony is conflicting, the finding of the trial court should not he disturbed.

8. Appeal and Error—Points not Raised in Trial Court.

Where points urged by appellant were not raised in the trial court, they cannot be presented for the first time on appeal.

Appeal from municipal court, borough of Manhattan, Ninth district. Action by Herman Bendix and another against Louis Saul. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Argued before ANDREWS, P. J., and O’GORMAN and BLANCHARD, JJ.

Alexander Michaelson, for appellant.

Hoff & Jacoby, for respondents.

At the close of the case no motion was made by the defendant for a dismissal of the complaint, and this must be regarded as a concession on his part that there were issues of fact to be determined. Indeed, the only point litigated was whether the contract relied on by the plaintiff was in fact made, ánd on conflicting testimony the learned justice found for the plaintiff. The other points urged by the appellant were not raised below, and cannot be presented for the first time on appeal.

Judgment affirmed, with costs. All concur.