
    Henry J. Hellthaler, Respondent, v. The Teft Weller Company, Appellant.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Saving questions for review — Presentation and reservation of questions in general — necessity of exception.
    Master and servant — Services and compensation — Actions for wages — Instructions.
    Where, on the trial of an action brought by a minor against his employer for wages, no question was raised as to the plaintiff’s emancipation and his father testified that he was entitled to his own earnings, that question cannot he raised for the first time upon appeal.
    In such a case the refusal of the court to charge, at defendant’s request, that the burden was upon the plaintiff to prove his “version of the transaction” is not error, as his burden was to prove the agreement.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, second district, rendered in favor of the plaintiff.
    
      Gennert & Gennert, for appellant,
    Julius Fischer, for respondent,
   Bischoff, J.

The claim in suit was for the balance of wages for twenty weeks at the rate of nine dollars per week, it being alleged that the plaintiff was employed by the defendant during the period at the agreed rate of eighteen dollars per week, half of which sum only was paid to him.

It appeared from the plaintiff’s proof that he had been employed by the defendant for about a year, at eighteen dollars a week, when, on June 27, 1903, he found in his pay envelope nine dollars; that he asked for an explanation and was told that it had been arranged by his employers, at his father’s request, to hold back half of his wages.

The plaintiff’s father testified that he had requested the defendant’s superintendent, Hr. Bogue, to pay the plaintiff only half of his regular wages, holding the balance for six months; in order that the plaintiff, a minor, might have less to spend each week and become less open to the temptations which attend the possession of money by one of his age.

. The testimony produced for the defendant was to the effect that the wages were to be reduced to nine dollars, subject to the defendant’s election to give a bonus to the plaintiff, at the end of six months, should his behavior be deemed good, in the defendant’s estimation, and not otherwise.

¡No question was raised at the trial as to the plaintiff’s emancipation, and" the defendant, evidently deemed the father’s testimony, that the plaintiff was entitled to his own earnings, sufficient. The question of emancipation cannot, therefore, be raised now.

It is urged, however, that the justice erred in refusing to charge at the defendant’s request that “the burden of proof is upon the plaintiff to prove his version of the transaction.”

Necessarily, the burden of proof was upon the plaintiff to establish that his agreed wages were eighteen dollars per week for the period for which he sought a recovery, and his “version of the transaction” was given to support the ultimate fact of the agreement. What he was bound to prove was .the agreement and his “ version,” taken with all the surrounding circumstances, as well as with the inferences which the jury might draw, even from the testimony of the adverse witnesses favorable to the finding of the continuance of the employment at eighteen dollars a week, would together be elements in the proof, the burden of which was on the plaintiff.

His “ version ” was one element of the proof, but was not the ultimate fact to be proven, and there was no error in the refusal of the instruction which was thus invoked to alter the actual issue and to circumscribe the functions of the jury.

The possibility that the refusal of this request led the jury to misconceive the actual rule as to the burden of proof arises solely from the defendant’s choice of words to frame the proposition of law, and the party’s own mistake cannot operate to take from his adversary the fruits of a properly conducted trial.

The judgment is, therefore, affirmed, with costs.

Scott and Trdax, JJ., concur.

Judgment affirmed, with costs.  