
    David P. Templeton, Resp’t, v. Julius Wile, et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed November 23, 1888.)
    
    1. Appeal—What may be considered upon appeal.
    Where the parties to a legal controversy have on the trial tested the question in dispute as one of law merely, it cannot be claimed, on appeal, that any disputed matter of fact was involved.
    2. Defense—Contract, when relied on as, must be alleged and established BY DEFENDANTS.
    When a contract is alleged as an affirmative defense, and a claim of damages for non-performance of a contract to be executed within a reasonable time is made, the burden of alleging and establishing the contract is on the defendants
    
      S. F Higgins, for app’lts ; David Leventritt, of counsel; Henry Wehle, for resp’t.
   Ehrlich, J.

The very clear and close analysis of the evidence by the learned referee, who tried the cause, has very much lightened the labor of the appellate court, and made unnecessary any extended review of the facts.

The record shows that both parties below treated the question to be determined as one of law only, and appellants cannot be heard to say for the first time, on appeal, that any disputed matter of fact was involved in the trial.

Eor a like reason, appellants’ last point, that in any event it should be held there was a contract extending over a reasonable time, is raised too late to be considered here.

Besides, the appellants here are pleading the alleged agreement as an affirmative defense ; therefore, if they claim damages or redress for non-performance of a contract to be executed in a reasonable time, their position is precisely that of plaintiff’s in the case cited by appellants’ counsel, and they, not respondent, must bear the burden of alleging and establishing the same. Pope v. Terre Haute Car Co , 107 N. Y., 61; S. C., 11 N. Y. State Rep., 209.

It might well be held, "also, that defendant’s Exhibit Ro 5 (p 24 of appeal book), upon which confessedly hinges the entire defense, should receive a construction less liberal for appellants than that suggested by the referee.

The “ conditions ” under which a shipment was authorized and made, are plainly the conditions therein enumerated, and do not at all include a contract for five years, which appellants requested respondent’s assignor to execute.

The judgment must be affirmed, with costs.  