Opinion
January Term, 1897.
Prescott Titus, for the appellant.
Evans Lee, for the respondent.
The order from which the appeal is taken does not recite the papers that were used upon the application for it. There is no compliance with the rule which requires that an appeal shall be heard upon a certified copy of the papers used before the court. (Code Civ. Proc. § 1353.) Rule 41 of the Supreme Court requires papers used upon the application for an order to be printed. ( Manhattan Railway Co. v. Taber, 31 Abb. N.C. 167.) There is nothing in the papers before the court to indicate that, when the opening was made or the summing up had, the matter which is now objected to by the appellant was objected to at the time the same was delivered at the Trial Term. There is a general provision of law that exceptions must be taken at the time when a ruling is made. If a proper objection had been taken when the opening was made, or the summing up was had, it must be presumed that the trial judge would have properly disposed of the questions presented by the objection. In the absence of objection to the questionable matter it is not the habit of this court to review the same. ( Mead v. Shea, 92 N.Y. 122.) Nor does it appear that any motion was made to limit the opening or the summing up. Nor was a ruling had at the time of the occurrence thereof which presented a question for review. ( People ex rel. Railroad Company v. Keator, 36 Hun, 592.) A trial judge has some discretion in settling a case. ( Canzi v. Connor, 4 Abb. N.C. 148.) Whether the discretion in striking from the case the objectionable matter has been abused or not, cannot be determined in the absence of the papers upon which the Special Term acted at the time of granting the order appealed from.
New York Rubber Co. v. Rothery ( 112 N.Y. 592) differs from the case in hand. There, on a proposed amendment striking out requests to charge, and a refusal of an exception upon a motion for resettlement, it was held that the refusal to grant the motion was error. The parties appeared and were heard, and presented papers in that case, and the Court of Appeals held that the appellant was entitled to have the case show the actual facts occurring on the trial, and considered the papers in extenso that were used at the time of the refusal of the order for resettlement. Under such circumstances, it was held that the order denying the motion for resettlement was reviewable.
In Grossman v. Supreme Lodge of K. L. of H. (5 N.Y. Supp. 122) a motion had been made to have the case resettled, and to have the ruling of the court excluding certain evidence inserted, which motion was denied, and, upon the facts appearing at the time of the application for the order for resettlement, it was held that an error was committed. We see nothing in that case that aids the practice in this. We think the order appealed from should be affirmed, with ten dollars costs and disbursements.
All concurred, except FOLLETT, J., not sitting.
Order affirmed, with ten dollars costs and disbursements.