
    Elias Hempstead, Respondent, v. Ernest Flagg, Appellant.
    (New York Common Pleas—General Term,
    March, 1894.)
    A failure fo move for a dismissal at the close of the whole case is a concession that there is evidence for the consideration of the court on the issue under the pleadings.
    In an action for trespass in the destruction of two boilers alleged to belong to the plaintiff, a motion to dismiss was made when plaintiff rested on the ground that he had not proven sufficient title to maintain an action either for trespass or conversion, but no motion to dismiss was made at the close of the whole case. Held, that defendant could not claim on appeal that plaintiff had failed to prove title and right, to immediate possession.
    Appeal from judgment of the First District Court in favor of plaintiff for ninety-two dollars and fifty cents damages and costs.
    The action was for trespass and the defense was a general denial. The injury proved wTas the destruction of two boilers belonging to the plaintiff.
    
      Clarence JB. Mitchell, for appellant.
    
      George C. Coffin, for respondent.
   Per Curiam.

The boilers, for the destruction of which the plaintiff claims damages, were in the old hotel G-lenham at Fifth avenue and Twenty-second street, the demolition of which defendant, as architect and supervisor for the owners, was directing, preparatory to the building of a new structure. He made a contract with one Seagrist to take down the old building, and Seagrist was to have the old material, which included the boilers. Seagrist sold them to the plaintiff before removing them and subsequently, as is claimed, abandoned his contract, leaving them on the premises. The plaintiff notified defendant of his purchase and tried to sell the boilers back to him. This offer was refused, and defendant notified plaintiff to move the boilers at once. This not being done, within five days thereafter defendant directed one Briggs to take them away, and they were broken up and sold by the latter. There was a question as to whether there was undue delay on plaintiff’s part in getting out the property, which was inclosed in a vault under the sidewalk; and as to whether he stood by and acquiesced in their destruction, when he could have removed them, but these questions of fact were disposed of by the justice in plaintiff’s favor upon evidence which supports the finding. The plaintiff’s title to the property by purchase from Seagrist, winch Avas ratified by defendant, who had authority from the owners, cannot be successfully disputed. The value of the boilers was the subject of conflicting evidence and the finding that they were worth the moderate amount allowed (seventy-five dollars) ought not to be disturbed.

It is argued that plaintiff failed to prove trespass because he had not possession, or right to immediate possession. The point that he had not proved the cause of action alleged was not taken in the court below, the motion to dismiss the complaint being made only when plaintiff rested, and placed upon the ground that he had not proven sufficient title to maintain an action either for trespass or conversion; and, there being no motion to dismiss at the close of the whole case, the defendant thereby conceded that there was evidence for the consideration of the justice upon the issue under the pleadings. This disposes of the questions now raised that plaintiff had failed to prove title and right to immediate possession. Such questions cannot be raised for the first time on appeal.

The judgment must be affirmed.

Present: Daly, Oh. J., Bischoff and Pkyob, JJ.

Judgment affirmed, with costs.  