
    Wright E. Post, Respondent, v. The Manhattan Railway Company et al., Appellants.
    (Argued December 3, 1890;
    decided December 16, 1890.)
    In an action to recovei damages to plaintiff's premises caused by the maintenance and operation of defendants’ road, the defendants claimed upon appeal to this court that the premises being in the possession of tenants under plaintiff, he could not maintain the action. Ho such defense was pleaded, nor was the question in any manner raised upon the trial. Meld, that the point could not be considered here.
    Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of Eew York, entered upon an order made May 10, 1889, which affirmed a judgment in favor of plaintifE entered upon a decision of the court on trial without a jury.
   The following is the opinion in full:

“ The defendants claim that the evidence shows that during the term for which damages were allowed in this action, the plaintift was not in possession of the premises damaged, but that they were in the possession of tenants under him, and hence that he cannot maintain this action for the ■ recovery of such damages. The answer to this claim is that no such point appears to have been taken in the court below. The defense that the premises were, during the time stated, in the possession of tenants, was in no way mentioned in the answer, nor was it mentioned upon the trial. All the evidence, in reference to the occupancy of the premises by tenants, came out incidentally. It was not offered to show that the premises, were occupied by tenants, but simply to show how much the plaintiff had been able to rent them for, and thus to show the. amount of his damages. No leases were put in evidence, nor were the terms or conditions of any lease or the nature of the. occupancy proved.

“ 'When the plaintiff offered evidence of the opinions of' competent witnesses as to the diminished rental value of the premises for the jrarpose of showing his damages, the defendant did not object to the evidence on the ground that the. plaintiff was not, being out of possession, entitled to recover’ such damages, but on the ground that the questions were incompetent, irrelevant, immaterial and conjectural, and that the witnesses were incompetent'.

“ At the close of the plaintiff’s evidence, and again at the close of all the evidence, the defendants moved for a nonsuit on grounds specified, but not upon the ground that the plaintiff could not recover the damages while his tenants were in possession.

“ After the trial, the defendants made to the trial judge various requests to make findings of facts and law, but none of them had any reference to the occupancy of the premises by tenants, or to the consequence of such occupancy.

“ While a very able and learned brief is made on behalf of the defendants to maintain the point that the plaintiff cannot legally recover damages because the premises were in the possession óf his tenants, the point is not mentioned in the brief of the counsel for the plaintiff, and, indeed, he states that another point was the sole one argued and insisted upon by the defendants at the General Term.

“It is entirely clear that'the point now relied upon for the reversal of this judgment was in no way brought to the attention of the trial j ndge, and that the case was tried before him upon the assumption by both parties that if there was any right of recovery for these damages it belonged to the plaintiff, and that the action therefor was maintainable by him.

Jul/ien T. Dames for appellants.

J. Zangdon Ward for respondent.

“.It is clear that the point now taken was not, upon the trial, in the mind of the defendant’s counsel, or, if it was, that he-studiously and carefully kept it to himself.

“ The question now for the first time raised in this action is of great importance, and its disposition will affect many actions and large interests. It- should be left for decision to a case where it has been litigated in the court below, and has been fairly presented by the evidence and rulings contained in the record. It is not now properly before us.

“ The judgment should, therefore, be affirmed, with costs.”

Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed.  