
    The People of the State of New York, Respondent, v. Henry Huffman Browne, Appellant.
    First Department,
    March 8 1907.
    Practice—case on appeal — exceptions improperly stricken out.'
    When an exception "is taken to the court’s refusal to charge, specifically and in. the language requested, certain written requests submitted, and the court states that the requests will be given to the stenographer to copy in the record, a specific exception to the denial of each of such requests should not he stricken from the printed case upon the theory that the “ exceptions ”" did not appear in the stenographer’s minutes.
    A case should be made up so as to state the truth as to what took place at the trial, and substance should not be sacrificed to form.
    Appeal by the defendant, Henry Huffman Browne, from so mueh of an order of the Court, of General Sessions of the Peace in and for the county of New York, entered on the 21st day of January, 1907, as denies in part the defendant’s motion for a resettlement of the case on appeal.
    
      Clark L. Jordan, for the appellant.
    
      E. Crosby Kindleberger, for the respondent.
   McLaughlin, J. :

This, appeal relates solely to a question of practice. The learned district attorney proposed certain amendments to defendant’s proposed case on appeal, some of which were allowed, and thereafter defendant’s counsel moved to resettle the case by restoring what had been stricken out. The motion to resettle was denied in part and he appeals from that part of the order.

At the beginning of the charge to the jury the trial judge stated that he had been asked by defendant’s counsel to charge .certain-propositions, some of which he would charge and some of which he would not. Some of these propositions he cliargéd and then stated: “I charge all these paragraphed requests, that I have read. I shall decline all your other requests here, Mr. Chanler, except as I shall hereafter charge them.” Thereupon the following colloquy between court and counsel took place: “Mr. Chanler: I take an exception to Tour Honor’s refusal to charge each and every request specifically, in the language requested, and does Tour Honor wish me to read these requests out loud or not? The Court: Ho. Tour requests are here before me. Mr. Chanler: Very well. They will be given to the stenographer and he will copy them in the record? The Court: Yes,sir.” The requests referred to were not thereafter charged, except as to possibly some of them, in a qualified form, and nothing further was done with reference to them until the making of the proposed case on appeal, when these requests were inserted and after each appeared an exception- to the ruling of the court. The amendments proposed by the district attorney complained of consisted in striking out these exceptions, and the motion to resettle was to have them restored, to the end that the case on appeal, when finally printed, would show that an exception was taken to the ruling of the court with reference to each one of them. The trial court, in the order appealed-from, refused to restore them upon the ground, as appears from his memorandum, that such exceptions ” did not appear in-the stenographer’s minutes. But this is no reason why the case should not be made up so as to tell the truth. The facts are not disputed, and there cannot be any doubt as to what counsel intended nor but that the court understood his intention. It was to except to each refusal to charge in the language requested, and both court and counsel seem to have understood that the requests to charge, which had been refused, should go into the record with the exception which was taken. To permit the case on appeal to be printed in such a way that, an appellate court can only determine what requests were charged by comparing the requests as made with the charge as made is not fair to the defendant nor to the appellate court. It is not a proper way to present what took place. The trial court knows whether or not he charged defendant’s requests, and he is the one to indicate after each one of the requests' as made whether charged, qualified, modified or denied.'' The purpose of a record on appeal is to tell precisely what took place at the trial in so far as alleged errors sought to be ¡^resented are concerned. To say, in view of what took place at this trial, that an exception was not taken to each refusal to charge, or to leave it in doubt because defendant’s attorney did not, at the close of the whole charge, specifically take an exeóp tion in each .case, is to play upon words sacrifice substance to form, and sanction a practice which ought not to he tolerated.

Whenever it appears that an exception has been taken, or attempted, to he taken, to an adverse ruling of which the court has full knowledge, the party against whom the ruling is made, if a record be thereafter made on appeal, should have the benefit of it. Courts usually look with disfavor upon technicalities and the law abhors them. The object to be attained in every legal trial, civil or criminal, is justice, and if injustice has.been done, it certainly cannot be cured either by making or enforcing technical rules of practice.

For these reasons I think the order, in so far as appealed from, should be reversed and the motion granted.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order reversed and motion granted. Order filed.  