
    Wright E. Post, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 16, 1890.)
    
    Appeal—What questions can be baised on.
    A question not litigated in the court below or fairly presented by the evidence and rulings contained in the record cannot be presented for the first time on appeal to this court.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff.
    
      Julien T. Davies, for app’lts; J. Langdon Ward, for resp’t.
    
      
       Affirming 23 N. Y. State Rep., 1007
    
   Earl, J.

The defendants claim that the evidence shows that during the term for which damages were allowed in this action, the plaintiff 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. Ho 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 purpose 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 non suit 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 of 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 judge, and that the case was tried before him upon the assumption by both parties that if there was any right of recovery for these damaages it belonged to the plaintiff, and that the action therefor was maintainable by him.

It is clear that the point now taken was not upon the trial in the mind of the defendants’ 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.

All concur.  