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Faburn v. Dimon

Appellate Division of the Supreme Court of New York, Third Department
Sep 1, 1897
20 App. Div. 529 (N.Y. App. Div. 1897)

Opinion

September Term, 1897.

Francis E. Baldwin, for the appellant.

Sherman Moreland, for the respondent.


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 in 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.

All concurred.

Judgment affirmed, with costs.


Summaries of

Faburn v. Dimon

Appellate Division of the Supreme Court of New York, Third Department
Sep 1, 1897
20 App. Div. 529 (N.Y. App. Div. 1897)
Case details for

Faburn v. Dimon

Case Details

Full title:SARAH FABURN, Respondent, v . ORVILLE P. DIMON, as Administrator, etc., of…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Sep 1, 1897

Citations

20 App. Div. 529 (N.Y. App. Div. 1897)
47 N.Y.S. 227