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

fusal as to each of such requests the defendant's counsel then and there excepted. The court said: "We think, for the reason stated, that the court properly disposed of the questions raised by these requests to charge. But if the court erred in refusing to charge one or more of the propositions as requested, there is no sufficient exception to such refusal. It is well settled that where several requests to charge are submitted to the court, some of which are charged as requested, some charged in a modified form, and others not charged, an exception taken in the form in which it appears in this case cannot be sustained. The exception must be more specific and point out the particular request to which it is intended to apply."

In Newall v. Bartlett (114 N. Y. 399), it appeared that at the close of the evidence the defendant's counsel presented to the court eight requests to charge the jury. Without making any ruling upon these requests the court proceeded to deliver his charge. At its close the defendant's counsel requested the court to charge upon two additional requests, which the court charged. The counsel then excepted to one instruction embodied in the charge as delivered. The case then shows that the court refused to charge the defendant's requests except as already charged, and the defendant's counsel took an exception to the refusal to charge as to each and every one of said requests. The court say: "It does not appear which of the requests had been charged, and consequently we are not advised as to which of the requests the exceptions apply. To raise any question upon the ruling of the trial court for review in this court, the exception must be specific and point out the particular request to which it is intended to apply."

In Read v. Nichols (118 N. Y. 224), it appeared that at the close of the evidence the counsel for the plaintiff presented to the court thirteen separate requests to charge. Some were charged as requested, some were charged in a modified form, and others refused. At the close of the

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

charge counsel stated that he excepted to the refusal to charge as requested by plaintiff's counsel in so far as the court did refuse, and to each of the refusals to charge as requested. It was held that this exception was not sufficiently definite and specific to present a question for review. In Huerzeller v. C. T. RR. (139 N. Y. 490), it appeared that at the close of the evidence the trial court charged the jury, and there were many requests by both sides to charge, some of which were granted and some refused. After the charge was finished and the jury had retired, counsel for the defendant excepted to the granting of the requests on the other side, and a refusal to charge those of the defendant's counsel. There was no other exception to the charge or refusal to charge, and it was said: "It is conceded by the learned counsel for the defendant that this general exception was wholly insufficient to present any question for review in this court; and so we have uniformly held” (citing the cases to which attention has been called. To the same effect is Piper v. N. Y. C. & H. R. RR. (89 Hun, 75). This last case was reversed by the Court of Appeals (156 N. Y. 22), but that reversal was upon the ground that the plaintiff was guilty of contributory negligence, and for that reason it was held that the complaint should have been dismissed. The rule to be adduced from these cases requires that 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 refused, 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. In McKinley v. Met. St. R'y, decided herewith, after the requests to charge had been presented on both sides, they were ruled upon separately, and when counsel for the de

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

fendant asked the court, "And now with respect to exceptions to those portions of your Honor's charge," th ecourt, interrupting, said: "You may take them after the jury have retired; either side may do that." After the jury retired, counsel for the defendant said, "Your Honor will allow me an exception in due form to each request which is refused and to each request which is modified," to which the court answered, "Yes"; and we hold that this request was so general, if simply taken and entered upon the record without the acquiescence of the court, it might be unavailing; but that the court having interrupted counsel when about to take specific exceptions, subsequently gave him an exception to the refusal of the court to charge his requests, that method being acceptable to the court and entered in the record as such, it was sufficient to raise the question as to the right of the defendant to have his specific requests charged which the court had refused to charge. We wish to call attention to this rule, that to entitle counsel to review a charge as actually made, there must be a specific exception to the portion of the charge which is claimed as error sufficiently definite to call the attention of the trial judge to the specific portion of the charge excepted to, and that where it is sought to review the refusal of the court to charge a request, there must be a specific exception to the refusal to charge the particular request; that a general exception to the refusal to charge as requested by the party taking the exception does not present a question for review on appeal, unless the court directs such course to be pursued and authorizes the entry of the exception to be made in that form.

HATCH, J., concurs.

O'BRIEN, J. (dissenting)—I am unable to concur in the conclusion reached by the majority of the court in this case because, under the authorities, I think the exception upon which the case is reversed is not properly before us for con

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

sideration, and, therefore, is not available. At the conclusion of the charge to the jury, some seventeen requests were presented by the plaintiff, and the trial judge stated those which he would charge and the numbers of those he declined to charge, these latter not appearing in the record. The defendant then made certain requests and, finally, just before the case went to the jury, the defendant's counsel said: "I except to your Honor's charging the following requests to charge made by the plaintiff-First, second, * * * tenth, eleventh," etc. In this way only was any exception taken to the tenth charge, which is the one in question. In Passey v. Craighead (89 Hun, 76) the court said: "At the close of the charge the defendant presented to the court twenty-eight requests, some of which were charged and some refused. The defendant excepted to each of the charges made by the court at the request of the plaintiff and to each qualification of those requests and to each refusal to charge either of the propositions requested by the defendant to be charged. These exceptions are wholly insufficient to present any question for review." And in the opinion written by Mr. Justice McLaughlin in Benedict v. Deshel, herewith handed down, it was held that where a number of requests were made by the plaintiff and refused by the court and the plaintiff's counsel said: "I except to each of your Honor's refusal to charge my several requests," the exception was not so taken as to present any question for review. The only difference between the form of the exception in that case and the case at bar is that here the numbers of the request were mentioned; but this did not point out any particular misstatement so as to afford the trial court the opportunity to correct any error, and it is the failure to so specify the objection made to the refusal that constitutes the vice in such exceptions.

I think, therefore, that the judgment appealed from should be affirmed, with costs.

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

NOTE ON SECTION 995 OF CODE OF CIVIL PROCEDURE.

DUTY OF COUNSEL.

It is the duty of counsel to remain in attendance upon the court until such trial is terminated either in person or by some one competent to and authorized to act. Cornish v. Graff, 7 Civ. Pro. 204208.

EXCEPTION, How TAKEN.

An exception must be taken to each proposition separately. A general exception will not avail. Sanford v. Crocheron, 8 Civ. Pro. 146-149; Willetts v. Sun Mutual Ins. Co., 45 N. Y. 45, 49; Smedis v. Brooklyn & C. RR. Co., 88 N. Y. 13; Rubenfeld v. Rabineo, 33 App. Div. 374-377.

VALUE OF SUCH EXCEPTIONS UPON APPEAL.

Questions of law raised by exceptions taken during the trial may be reviewed upon an appeal from the judgment under the provisions of this (995) section and that of 996. Clement v. Beale, 53 App. Div. 416-417; Dearing v. Pearson, 8 Misc. Rep. 269; Lanier v. Hoadley, 42 App. Div. 6-8.

An exception filed more than eight months after the time when it should have been taken will not avail. Murray v. City of New York, 60 App. Div. 541-543.

Nor can the trial court permit exceptions not in fact taken to rulings made in the trial to be inserted in the record after the conclusion of the trial without the consent of both parties. Hill v. Warner, 25 App. Div. 628.

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