Paul v. Delaware, Lackawanna and Western Rail. Co. ( 1903 )

The appellant is precluded from raising in this court the objection that the contract under which the plaintiff claims title to the moneys sought to be recovered is illegal as being in restraint of trade and as contravening both State and Federal statutes, because that objection was not taken in either court below. (Dodge v. Cornelius, 168 N.Y. 242; Purdy v. ErieR.R. Co., 162 N.Y. 42; Erie R.R. Co. v. Purdy, 185 U.S. 148;Home for Incurables v. City of New York, 187 U.S. 155.) The defense that the plaintiff's assignor had committed a breach of the contract presented, as is shown in the opinion of BARTLETT, J., rendered in the Appellate Division, a question of fact, the disposition of which by the courts below is conclusive on this court.

The judgment must be affirmed, with costs.

PARKER, Ch. J., BARTLETT, HAIGHT, MARTIN, VANN, CULLEN and WERNER, JJ., concur.

Judgment affirmed.