Atkinson v. Singer Manufacturing Co. — 69 N.Y. St. Rep. 491

Majority

p. 491

Maurice B. Atkinson, Resp’t, v. Singer Manufacturing Company, App’lt.

(New York Common Pleas, General Term,

Filed August 22, 1895.)

Headnote

Appeal—First instance.

An objection that an action is prematurely brought, cannot be raised for the first time on appeal.

Appeal from a judgment in favor of plaintiff.

Booraem, Hamilton, Beclcett & Ransom, for app’lt; John Galla han, for resp’t.

This action was brought to recover back $75 which the respondent had deposited as security for the honest performance by him of his duties as employe of the appellant. The record shows that he left their employment, by mutual consent, on the 9th day of February, and this action was begun on the 12th day of the same month and year. There was a strenuous •contest between the parties, upon the trial, as to .whether the agreement was that a period of sixty or ninety days must elapse, after the termination of the employment, before the deposit was to be returned. The appellant now urges that the action was prematurely brought, in either event; but this objection was not made upon the trial. In fact, the attention of the court was called away from it by a conflict over a point that was really'immaterial. Under the circumstances, we do not feel bound to consider the objection upon appeal, especially as it does not appear that injustice has resulted.

The judgment is affirmed, with costs.