
    Henry C. Griffin, App’lt, v. John C. Todd, Resp’t
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May, 11, 1891.)
    
    Appeal—Cannot eaise objections not made below.
    Where parties go to trial on the pleadings, without objection, upon appeal the objection cannot be raised that there was not a specific denial of the allegations of the complaint. That point should have beefi. raised upon the trial when, if necessary, the defendant might have been allowed to amend.
    Appeal from a judgment dismissing complaint, entered upon the decision of the court, at Westchester county special term.
    
      Henry C. Griffin, for app’lt; J. S. Millard, for resp’t
   Pratt, J.

—This appeal involves only questions of fact decided below upon conflicting testimony.

The judge who saw the witnesses and heard them testify was better qualified to pass upon their credibility than an appellate court can be merely from reading their testimony.

There seems to be evidence to sustain all the findings of fact and the conclusions of law are appropriate to such findings, and the judgment must, therefore, be sustained.

The parties went to trial upon the pleadings without objection: evidence was adduced to contradict the plaintiff’s complaint and evidence, and in support of the allegations of the answer. Under such circumstances it was the duty of the court to render a proper judgment upon the merits without reference to the fact that there was not a specific denial of the allegations of the complaint. That point should have been raised upon the trial, when, if necessary, the defendant might have been allowed to amend.

This contention is without merit upon another ground, and that is the fact that the answer substantially set up a denial by asserting facts which controvert the allegations in the complaint

We think either party had a right to repair the street to make it convenient and safe for "both, to travel upon, and the evidence fails to establish any unlawful acts on the part of the defendant which caused injury to the plaintiff, on the other hand, it clearly appeared that the defendant had greatly improved this highway without detriment to any right of the plaintiff.

J udgment affirmed, with costs.

Barnard, P. J., concurs.  