John H. Paul, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant

John H. Paul, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant. Paul v. Delaware, L. & W. R. R. Co.. 72 App. Div. 449, affirmed. (Argued May 12, 1903; decided May 22, 1903.) Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 28, 1902, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial. William D. Guthrie, Henry D. Hotchkiss, Walter W. Ross and William Strong McGuire for appellant. Augustus Van Wyck for respondent. [MAJORITY — Per Curiam.] Per Curiam. 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. Erie R. 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.