
    The Cook & Bernheimer Company, Respondent, v. Rudolph M. Haan, Appellant.
    (Supreme Court, Appellate Term,
    September, 1897.)
    1. Corporations — A salesman cannot bind it by an advertising con-. ■ tract — Waiver. • *
    A salesman of a domestic corporation has no implied power to make an agreement with a customer for advertising the wares of the - corporation in his store window; but where the'objeetion is not taken, below, it cannot be raised upon an appeal.
    8. Variance — Waiver.
    Á variance between pleadings and'proof must be insisted upon at: the trial, or it cannot be made the subject of review.
    Appeal by plaintiff from judgment of First Judicial District. Court.
    Douglass & Minton, for appellant.
    Oppenheim & Severance, for respondent.
   McAdam, J.

The amended complaint shows that the action is by a domestic corporation to recover for the sale and delivery of five cases of Mount Vernon rye whiskey “ at agreed prices amounting in all to $74.58, the same being the' reasonable valué thereof.” The allegations as to agreed price and reasonable value were put in issue by the defendant] so that the plaintiff’s motion for judgment on the pleadings was properly denied.

The defendant depended chiefly upon a counterclaim under an agreement made with the plaintiff’s salesman, whereby the defendant was to advertise the plaintiff’s goods by displaying them, to the exclusion of his own, in his store window on Broadway near Thirty-fourth street, at a charge to the plaintiff of $50 a month for one year.

The defendant proved the agreement without objection, and that under it he placed four cases of the plaintiff’s whiskey in his show window, together with a large bottle and business signs which the plaintiff’s" salesman had furnished for the purpose, the display being made in pyramid form and in a manner to attract attention. Ble also proved by a disinterested witness that the use of the window .for advertising purposes was worth considerably more than the salesman had agreed to pay for the same.

The justice allowed the defendant $100 on his counterclaim, from which he deducted the sum demanded by the plaintiff, and rendered judgment in favor of the defendant for the balance.

It is urged by plaintiff that its salesman had no power to bind it by the alleged agreement. The position he occupied certainly gave, him no implied authority to make such a contract. But the plaintiff neither by motion to dismiss the counterclaim or any form of objection called in question the power of the salesman to make the arrangement testified "to by the defendant. Indeed for all that appears to the contrary the salesman may have been expressly authorized to do as he did.

We have repeatedly held that objections must be made in the court below, where they may be obviated, for “ objections which were not taken upon the trial or in the course of the proceedings cannot be urged on appeal. * * * This doctrine is founded upon considerations of great importance to the due administration of justice, and which are recognized to a greater or less extent in the practice of all the courts. The constant application which is made of this rule shows how well it serves the interests of the public as well. as of litigants. It is certainly not -unreasonable to require a party desiring to review in an appellate court the action of the trial court to call the attention of the trial court, by reasonable objections, 'to the proceeding complained of.” 8 Enc. Pl. & Pr. 157.

The plaintiff also urges that the proof offered does not conform to the defense pleaded. It is consistent therewith, and certainly wi&otiieiú’@Z9fi4qm„@dg,d>lj M FWWS&íkñ PZÍ^enep/ought to have-ib^feD??ob|fectfA:^oéí% íftcFfídlíEtt^^: aítmotionilp"ysfcrikg c@at¡shgu^d hav.6; heon,ma,d,e¿ to .prqsgnt. ítheíiquestidíL %Ií@tói-YfQFL®agates fejfesjjp#?®» <$ÉÍ6bjj®)Figr3^^|'4¥a:BI besuí.Teméws^ ¡d The;. plaintiff; di^ipokMdopt jtihis (Cpnrsey^n^gtligj ;g-Eg party,-; by .not, qbj.eqting; gr vqjbhegytisB^eonsep.t^ i@ qngslÍLpns ;nót -techniGally ^withinj.thg issqe^.hfti^lSSÍí rylsisdMt ñt. to on appeal be heard to complain that the recovery- :jyas -aptiMSSc thernansgjofrdetiQnfSppgifieally ¡alleged,,.!’ Kafka v. Levensohn, 18 Misc. Rep. at p. 205; Frear v. Sweet, 118 N. Y. 454.

(foW$dQs^.dm#lMWYS9E#)P!^^Wl®^^.70fti^§oP:^FÉk!iW6/4!^ fehdant’s ^epeatpd ¿réqugsjB i£pí,: -delay jand jpronúses ío^ad®^ th^ plaintifílss W^tepee ofy^^gg dsbtedhes,S;:to <j£h#t the jp@tip.e,,;was: bqppdntpj diMelióÉpítihe ®nqqntij.adictqd ^yidenqepqí -ifehe, defendant, .íp^rc^q^, without oh^peMond/ -mi v.m .,1 .Eo/íu h;-A y v.^Izí odí nadi s-iom .

3}her: judgmei(t[ must: sbe; nffirniod).- ydth {eosts¡,,-,y;.,

Daly, P. J., and Bischoff, J. concur.

Judgment affirmed, with cost.  