
    (20 App. Div. 529.)
    FABURN v. DIMON.
    (Supreme Court, Appellate Division, Third Department.
    September 28, 1897.)
    1. Appeal—Review.
    Conclusions of referee on conflicting evidence will not be disturbed.
    2. Same—Objections not Raised Below.
    A claim that a portion of a demand sued on is barred by limitations cannot be first raised on appeal.
    Appeal from judgment on report of referee.
    Action by Sarah Faburn against Orville P. Dimon, administrator of Elijah Ruger, deceased. Judgment for plaintiff on the report of a referee, and defendant appeals. Affirmed.
    Argued before PARKER, P. J., and LAND OH, HERRICK, PUT-HAM, and MEKWTH, JJ.
    Baldwin & Baldwin, for appellant.
    Sherman Moreland, for respondent.
   PER CURIAM.

A careful examination of the evidence shows that there is such a conflict over the questions of fact in this case that we are not disposed to interfere with the conclusion to which the referee has arrived concerning them. Nor do we find any error im the referee’s rulings sufficient to warrant a reversal of the judgment. As to the claim that a portion of the demand is barred by the statute of limitations, it is sufficient to say that no such claim was made upon the trial, or at any time prior to this appeal. The record does not disclose that such a defense was interposed, or ever In any way suggested. No exceptions are filed to the findings of the referee; no requests made to him to pass upon that question; no exceptions taken to the admission of evidence on that ground. While we do not hold that it is necessary to state such defense in the rejection of the claim, or in the stipulation to refer, yet we think that it should in some form be taken either before or upon the trial, and that it cannot be raised for the first time after judgment and upon appeal.

We conclude, therefore, that the judgment should be affirmed, with costs.  