In the Matter of The Estate of Mary Killan, Deceased, etc.

surrogate was not bound to wait for the claimant to gather his proofs by commission in a foreign country, and as the claimant had not brought before the court the parties who had received the estate under the decree of the court, the surrogate had the right to dismiss the proceeding as he did, and since the body of the order contains no statement that he did not dismiss in the exercise of discretion, but for want of power, this court has no jurisdiction, as no question of law is presented (Tilton v. Beecher, 59 N. Y. 176; Snebley v. Conner, 78 N. Y. 218; Salmon v. Gedney, 75 N. Y. 481; Tolman v. Syr., B. & N. Y. R.R., 92 N. Y. 353).

For these reasons I am in favor of affirming the order or dismissing the appeal.

HAIGHT, J. (dissenting)-I concur with O'Brien, J., for affirmance. I think the Surrogate's Court acquired jurisdiction of the proceedings for the judicial settlement of the accounts of the administrator and that the decree made therein is binding upon the administrator and all the persons cited, served and appearing upon the hearing; and that, under the provisions of the Code, but one final decree of distribution of the funds in the hands of the administrator is contemplated or provided for. I am further of the opinion that the surrogate adopted the correct practice in holding that the petitioner, not having been made a party to the proceeding and not having appeared therein, has the right, upon his application, to have the decree opened and then heard upon his claim to be the next of kin and entitled to share in the distribution of the estate.

PARKER, Ch.J., VANN and CULLEN, JJ., concur with BARTLETT, J.; O'BRIEN and HAIGHT, JJ., read dissenting. opinions; WERNER, J., concurs with O'BRIEN, J.

Order reversed, &c.

Raymond Connor, etc., Respondent, v. Met. Street Ry. Co., Appellant,

RAYMOND CONNOR, BY HIS GUARDIAN, ETC., RESPONDENT, v. METROPOLITAN STREET RAILWAY COMPANY, APPELLANT.

SUPREME COURT-APPELLATE DIVISION-FIRST DEPART MENT-DECEMBER 1902.

§ 995.

Question of Negligence Erroneously Withheld from Jury Necessity for Special Exceptions to Charge to Jury.

The question whether the motorman of a street car was or was not negligent, if certain facts were found to have existed, erroneously passed upon by the court as matter of law; such question upon all the facts appearing should have been submitted to the jury.

A party excepting to a charge to a jury must by some exception point to the specific proposition which the court has charged or refused to charge, or to a specific ruling on a refusal to charge to which counsel supposed himself entitled. Where several requests are made, some of which are charged and some refased, the attention of the court must be called to the ruling refusing a specific request by an exception taken to that ruling; an exception generally to the refusal of the court to charge as requested is not sufficiently specific.

(Decided December, 1902).

Appeal from a judgment entered on verdict and from an order denying a motion for a new trial.

Charles F. Brown, for appellant.

I. Newton Williams, for respondent.

MCLAUGHLIN, J.-This action was brought to recover damages for personal injuries alleged to have been caused by defendant's negligence.

Raymond Connor, etc., Respondent, v. Met. Street Ry. Co., Appellant.

The plaintiff, on the 4th of August, 1899, then about 14 years of age, was injured by a collision between one of defendant's cars and a truck on which he was riding. The testimony on the part of the plaintiff, so far as it relates to the collision, tended to show that the plaintiff sat on the rear of the truck, which was going in a northerly direction on defendant's tracks, and while in this position, one of the defendant's cars came up behind and collided with it; and before he had any chance to escape and without any fault on his part, he sustained the injuries complained of. The testimony on the part of the defendant tended to show that as the car came up behind the truck the motorman of the car signaled for the driver of the truck to leave the tracks, and in obedience thereto he did commence to leave the tracks; that while in the act of doing so the horse attached to the truck, or else the truck itself, came into collision with one of defendant's southbound cars, and by reason thereof the truck was forced back against and came in collision with the northbound car, and thus the plaintiff was injured. It matters little which contention be taken as the true one; it is quite clear a question of fact was presented as to defendant's negligence, as well as the contributory negligence of the plaintiff, and we should have no hesitancy in affirming the judgment were it not for an error in the charge. The trial court, at plaintiff's request, charged the jury: "If the northbound motorman, by the exercise of reasonable care, could or should have seen that there was danger of a collision between the southbound car and the van, and yet kept his car up to within a few feet of the van, so that the van was driven back into his car, then he was negligent." The defendant excepted to the instruction thus given, and we think the exception well taken.

If the jury found that the facts stated in the request were established by the evidence, then it was for them to say whether or not such facts constituted negligence on the part of the motorman-taking into consideration all of the facts

Raymond Connor, etc., Respondent, v. Met. Street Ry. Co., Appellant.

and circumstances surrounding the collision. It was error for the court to charge, as matter of law, that if they found such facts, that then the motorman was negligent (Kellegher v. Forty-second St. R'y, 171 N. Y. 309). It would seem as though the motorman would have a right to assume, when the driver of the truck started to leave the tracks, that he would do so in such a way as not to collide with one of the defendant's cars going in an opposite direction. This would certainly be the natural inference and one which a reasonably prudent man would have the right to make; and the fact that he acted upon his assumption, by bringing this car close to the truck, so that he might proceed with it as soon as the. truck had left the tracks, did not make him negligent per se. At most, it was for the jury to say whether or not his act was a negligent one. That the defendant was prejudiced by this instruction was sufficiently evidenced by the verdict rendered.

For the error thus committed, the judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.

VAN BRUNT, P.J., and HATCH, J., concur.

INGRAHAM, J.-I concur with Mr. Justice McLaughlin,. and only wish to call attention to the exception necessary to justify a review of the charge to the jury. In this case, after the charge was finished, the court said that he had been requested by the defendant to charge certain propositions which he charged, and "on behalf of the plaintiff I will charge the requests one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen and fourteen. Fifteenth, sixteenth and seventeenth I decline to charge, to which you are entitled to an exception." The requests that the court charged are then stated in the record, which included the tenth request. Counsel for the defendant then, after excepting to specific portions of the charge, said: "I except to your Honor's charging the following requests to charge made by

Raymond Connor, etc., Respondent, v. Met. Street Ry. Co., Appellant.

the plaintiff-first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth and fourteenth." Here the court specifically charged the tenth request made by the plaintiff, and the defendant specifically excepted to the charge of that request.

By section 995 of the Code of Civil Procedure it is provided that an exception must be taken at the time when the ruling is made, unless it is taken to the charge given to the jury; in which case it must be taken before the jury have rendered their verdict. This exception comes within the last clause of this section, as it was an exception taken to the charge of the court to the jury, and upon the record it appears to have been taken before the jury had rendered their verdict. It was taken to a specific charge made at the request of the plaintiff, and the exception specified the particular request that the court had charged to which the defendant excepted. It is undoubtedly the rule that to entitle a defeated party to review a proposition contained in a charge to the jury, there must be a specific exception to the charge so that the attention of the court is directed to the express proposition to which counsel desires to except; or where there is a refusal to charge a request, there must be a specific exception to the ruling of the court refusing to charge the specific request. A general exception to the charge without specifying the particular proposition to which it is desired to except manifestly raises no question upon a review of the judgment, nor where several requests to charge have been presented, to some of which the court has acceded and to others refused, does a general exception to the refusal to charge as requested present a question for review. Such an exception is too general. In Smedis v. Brooklyn & Rockaway Beach RR. (88 N. Y. 14), at the close of the evidence counsel for the defendant presented to the court fifteen separate requests to charge. The court charged substantially as requested, and then at the close of the charge declined to charge except as already charged; to which re