The very clear and close analysis of the evidence by the learned referee who tried the cause, has very much lightened the labor of the appellate court, and made unnecessary any extended review of the facts. The record shows that both parties below treated the question to be determined as one of law only, and appellants cannot be heard to say for the first time, on appeal, that any disputed matter of fact was involved in the trial. For a like reason, appellants’ last point, that in any event it should be held there was a contract extending over a reasonable time, is raised too late to be considered here. Besides, the appellants here are pleading the alleged agreement as an affirmative defense. Therefore, if they claim damages or redress for non-performance of a contract to be executed in a reasonable time, their position is precisely that of plaintiffs in the case cited by appellants’ counsel, and they, not respondent, must bear the burden of alleging and establishing the same. Pope v. Car Co., 107 N. Y. 61, 13 N. E. Rep. 592. It might well be held, also, that defendants’ Exhibit No. 5, upon which, confessedly, hinges the entire defense, should receive a construction less liberal for appellants than that suggested by the referee. The “conditions” under which a shipment was authorized and made are plainly the conditions therein enumerated, and do not at all include a contract lor five years, which appellants requested respondent’s assignor to execute. The judgment must be affirmed, with costs.
McGown and Pitshke, JJ., concur.