We may not consider the question argued before us as to whether the book for the selling of which the defendant was convicted was obscene, lewd, lascivous, filthy, indecent or disgusting. By failing to move at the close of the evidence to dismiss the proceeding the defendant conceded that there was a question of fact to be determined by the court. (People v. Bresler, 218 N. Y. 567; People v. Bellavicini, 218 N. Y. 717.) The rulings of the trial court upon the exclusion of evidence were proper.

The judgment appealed from should be affirmed.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment affirmed: