This action was brought to recover damages claimed to have been sustained by plaintiff, in consequence of an injury to his infant son, through the alleged negligénce of the defendant’s servants. The pleadings were in writing and the answer, besides containing a general denial, averred contributory negligence.
The proofs were sufficient to warrant the justice in finding that • the tail-board of the ice wagon was down while the defendant’s servants were in the butcher shop, and that in consequence thereof one of the cakes of ice fell out of the wagon upon plaintiff’s son while he was upon the sidewalk, thereby causing the injury for which plaintiff seeks compensation.
The defendant urges that the boy was guilty of contributory negligence, but as the point was not made in the court below, it cannot now be raised for the first time on appeal. Flandrow v. Hammond, 148 N. Y. 129; Kafka v. Levensohn, 18 Misc. Rep. 202.
The record discloses that the only motion made by the defendant to dismiss the complaint was based solely upon the ground that there was no evidence of negligence on the defendant’s part. *779This was calculated to mislead the plaintiff into the belief that no claim of contributory negligence was made by the defendant upon the facts, and to cause him to refrain from giving proof which might well have been adduced upon the point had attention been called to the defect at the trial.
Eor these reasons the judgment should be affirmed, with costs.
Present: Beekman, P. J., Geldeesleeve and Giegebich, JR
Judgment affirmed, with costs.