
    Fred L. Conroy, Respondent, v. J. Edward Boeck, Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    ' Evidence — Proof that the subject-matter of defense is in litigation — Use of books denied when facts admitted — Objection to proof not urged at trial. ,
    Where the defense, in an action for' work, labor and services, is that the value thereof was to be offset against defendant’s claim for commissions it is competent for the plaintiff to show that the defendant’s whole claim for commissions was in litigation.
    It is not error to deny to defendant the use of the plaintiff’s assignor’s books on trial when the only ground, suggested for the use of said books, is covered by plaintiff’s admissions.
    The objection, that the assignment of a cause of action was not properly proved at the trial, cannot be urged for the first time on appeal when it is not brought to the attention of the trial court on a motion to dismiss the complaint.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Kew York, sixth district, borough of Manhattan, rendered in-favor of the plaintiff.
    Jacob Marx, for appellant.
    Franklin Bien, for respondent.
   Bischoff, J.

The action was for certain goods sold to and work done at the request of the defendant by Smith & Co., the plaintiff’s assignor, and the defense proceeded upon an alleged agreement that the value of the goods and the work was to be charged to the defendant’s commission account with Smith & Co., by whom he was employed as salesman, the answer alleging an excess of commissions over the amount in suit. This defense was open to the construction that it involved a set-off, and in this aspect, proof that the whole claim to commissions was in suit in an action brought by an assignee of the defendant, prior to the commencement of this action, was relevant. The defendant’s objection to the evidence was not sufficiently specific to present error upon the grounds now urged.

Upon the merits, we find no sufficient ground for disturbing the justice’s conclusion that the goods and work in suit were subject to no agreement whereby payment was to be deferred to the adjustment of the commission account. The issue was presented upon a conflict of testimony, and the better credibility was by no means necessarily with the defendant, upon whom rested the burden of proof.

The contention that the defendant was improperly denied the right to use the books of the plaintiff’s assignor*, Smith & Co., overlooks the fact that no ground was suggested at the trial for the use of these books which was not covered by plaintiff’s admission upon the record, and it is too late to raise other points now.

■ The defendant calls attention to the omission of proof of the-assignment of the cause of action to the plaintiff, but, here again, the defect is specified for the first time on appeal, not being brought to the attention of the trial court by the general motion to dismiss the complaint. Thayer v. Marsh, 75 N. Y. 340. Moreover, the assignment is marked as an exhibit and annexed to the return, presumably because it wa= offered at the trial; if not, the appellant should have caused the return to be corrected.

The points raised do not call for a new trial, and the judgment is, therefore, affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.  