
    Fanny B. Carrere, Respondent, v. Robert G. Dun, Appellant.
    (City Court of New York, General Term,
    June, 1896.)
    Appeal—Questions.not raised below.
    \ • Where the defendant does not move to -dismiss the complaint or for the direction of a verdict in his favor, he cannot claim for the first . .time on appeal that the facts did not warrant a submission to the jury "or that the verdict was against the weight of evidence.
    
      Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from an order denying a motion for a new trial.
    James Á. Gray, for respondent. ¡
    Douglass & Minton, for appellant.
   Coklak, J.

This is an appeal from a judgment entered on the •verdict of a jury, and from an order denying a motion for a hew trial.

The action was commenced by the plaintiff, as assignee of her husband, to recover for services alleged to have been rendered by him to the defendant, Robert G. Dun.

On the trial the value of the services was not seriously disputed, as the defendant contended that he was not liable for any services claimed to have been rendered by. the plaintiff’s assignor ón the grounds that there was no employment by them.

The evidence of the plaintiff’s assignor is to the effect that, on ¡February 28, 1893, he was employed by one Greene as an accountant, to work on the books of R. G. Dun & Co.; that subsequently and about. April, 1893, said Greene,' as the representative of R. G. Dun & Co., changed the employment to a yearly hiring on a salary of $2,000 per year; that about ¡November or December of that year said Greene told plaintiff’s assignor that he was the attorney for R. G. Dun & Go., and that Mr. Dun, who was the head of the concern, requested that he should make out his (Dun’s) private account, stating at the same time that said assignor , should be paid for such' services in addition; that said assignor, at the request of said Greene, did take the . books off R. G. Dun to his home, and worked on them nights, holidays and Sundays for a period of about four months, such work covering a period of about seventeen years; that during the progress of the work defendant Dun asked him how he was getting along with the work, and gave him a memoranda of names . and dates, covering about eight years of the work; that when the work was completed it was returned to Mr. Greene at the office of R. G. Dun & Co.

Plaintiff testified that Greene told her that her husband was to be paid liberally for this work. The defendant called Edward Greene, who testified to the original employment by him of the plaintiff’s assignor for R. G. Dun & Co., but denies that he employed him on account of defendant,, or that the work complained for was. done, for defendant or that the same was extra work, hut that; the same was work required- to be done in the regu- ' lar course of his employment by R. G. Dun & Co:'

At the conclusion of the testimony the- defendant- did not move ■to dismiss the complaint' or direct a verdict for the defendant; and having taken his chances with the jury for a favorable verdict, he was precluded' from asserting for the first tilne on appeal that the facts did not warrant their submission to the jury or that the verdict'is against the weight of evidence. Bennett v. Levi, 46 N. Y. St. Rep. 754.

" There were, numerous-objections and exceptions taken during the trial, but as they ¡all related to the authority of Greene to bind the defendant, and that being' a question for the'jury, it was fairly submitted to- them, and they having in effect found the' power to employ and the employment, we do not feel justified In' disturbing the verdict. , -

■ Judgment affirmed, with costs'.

Van Wyck, Ch. J., and O’Dwyer, J., concur.

J udgment affirmed, -with- -costs;  