
    Cecilia J. Zimmer, an Infant, by Charles V. Zimmer, her Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company and Third Avenue Railroad Company, Appellants.
    
      Eesettlement of a proposed ease on appeal—rules applicable thereto. '
    
    An appeal lies from an order denying a motion for a resettlement of a case on ■ appeal, and where the record on appeal contains no affidavit contradicting the positive moving affidavits used on such a motion the motion should be granted.
    Where a proposed amendment relates to an exception to the admission or rejec- ¡ tion of evidence, and it appears that an objection was made, there should be an amendment inserting the exception, but not where there was no objection made. '
    Where exceptions are taken to the charge of the court, the applicant for an order of resettlement is only entitled to have in the .record the exact statements made ; by him upon the trial; and in case the stenographer’s minutes do not show that ; an exception was' taken at the time of the charge and of each request, but do show that certain exceptions were taken at the close of the body of the requests, the appellant is entitled to the insertion of his exceptions at the stage of -the charge at which they were made and not elsewhere.
    r Appeal by the defendants, the Metropolitan Street Railway Company and another, from so much of an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of-the county of Queens on the 14th day of December, 1897, as denies the defendants’ motion to resettle the proposed case on appeal herein.
    
      Charles F. Brown [Henry L. Scheuerman and John T. Little, Jr., with him on the brief ], for the appellants.
    
      Ernest M. Welch, for the respondent.
   Goodrich, P. J.:

■ The action was tried before Mr. Justice Garretson and resulted in a verdict for the plaintiff, against both defendants; and from the judgment entered thereon an appeal has been taken. A proposed' case and proposed amendments thereto were made-and served, and the same were settled by the justice. Thereafter a motion was made before him by the defendants for a resettlement, and he denied the motion. - It is stated in the brief for the respondent that the justice, in denying the motion, said that he based his decision, not only upon the stenographer’s minutes, but also “ from his own recollection.” No such fact appears in the record and we must decide the appeal on the record as it stands'.

The first question which arises is whether the order is appealable. This is decided affirmatively in New York Rubber Co. v. Rothery (112 N. Y. 592), where (at p. 596) Peckham, J., said: “We also think the order is appéalable. There being no conflict as to the facts, the plaintiff was entitled to have the motion for a resettlement granted, and the refusal deprived it of a substantial and valuable right, and the order which denied it is re viewable here.”

The next question relates to the rule to be applied as to the merits of the application for an order to resettle a case. This is stated in the same opinion.

“ Upon the papers before us there is absolutely no conflict as to what actually took place upon the trial with reference to this request and the exception taken upon the refusal to charge it. * * * We cannot, of course, dictate to a trial court how a case shall be settled, and we do not presume to do any such thing in this case. We can only say that upon the facts appearing as they do here, the motion for the resettlement of the case ought to be granted, to the end that the question may again be presented to the learned trial judge, so that he may have an opportunity to resettle it in such manner as shall be consistent with the facts; an' opportunity which wé are sure none would feel greater pleasure in embracing than the distinguished and learned judge who presided on the trial of this case.”

That was an appeal from an order denying a motion to resettle the case, and the court reversed the order and directed a resettlement. The case came again before the court, about a year later (119 N. Y. 633, and 2 Silv. Ct. App. 545),.on another appeal from an order of the General Term, affirming an order denying a motion to resettle ; and the court again directed a resettlement. It is twice stated in the brief of the learned counsel for the appellants that the clerk of the court was directed to correct the record, or make the correction in the record, but I do not find, in either of the two volumes referred to, any such fact stated.

In Grossman v. Supreme Lodge (16 Civ. Proc. Rep. 215 ; 22 N. Y. St. Repr. 522) the General Term of the first department, Mr.' Justice Bartlett writing the opinion, said : “In the settlement of a case, what occurred upon the trial must’¡be ascertained from, what the presiding • justice find's to be the truth (Matter of Tweed v. Davis, 1 Hun, 252, 255), and ' he may hear and consider the affidavits of the parties and their counsel, inspect their notes as well as his own, and consult his own recollection, as well as other accessible; means of information, for the purpose of settling .the controversy, between the. parties concerning what may have actually taken'place.’ But if he is asked to place upon the record statements of fact which are at variance with his own memory of what happened, he cannot be compelled to do so, nor would it be proper that he should. It is not only his right, but his duty, to settle the case according to own recollection of what occurred, if lie -is perfectly confident' that! such recollection is correct. This. is what we understand to be the position of the. learned judge who tried the case at bar. He has refused to put the case oil appeal in the form desired by the counsel! for the appellant,, because to do so would be to depart from the truth, as he recollects it. His action in this respect is conclusive upon the appellate tribunal.”

In Tweed v. Davis. (1 Hun, 252, 255) Daniels, J., said: “ What transpired up'on the trial must, therefore, be ascertained from what; the justice presiding finds to be the truth. His determination, after hearing the parties, is judicial, and must be conclusive upon the court in the disposition of an application like the present one.” The record, however, contains no affidavits contradicting the affidavits of the defendants upon which the motion to resettle was made. There are four affidavits of Messrs. William N. Cohen and Henry L. Scheuerman, who were counsel at the trial for the defendant, the Third Avenue Railroad Company, and .Messrs. Henry Thompson and John T. Little, who represented the' Metropolitan Street Railway Company. These affidavits are not made on infermation and. belief, but on positive testimony as to the questions involved, and, in the absence of any opinion from the learned justice, we think the case should be amended so' as to incorporate the several proposed amendments, on the- following principle: Where the amendment relates to an exception- to the admission or rejection of evidence, and it appears that an objection was taken, there should be an amendment inserting the exception, but not where there was no objection made.

As to the exceptions to the charge, subject to the suggestions already made, the applicant for an order of resettlement is only entitled to have in the record the exact statements made by him. upon the trial. As an illustration, the proposed case contained the following: Mr. Thompson: I except to that part of the charge that the rule governing the defendant, the Metropolitan Street Railway Company’s liability, was that it should exercise the utmost care and skill of human foresight.”

There followed in the proposed case a quotation, from the charge, of the words to which the appellant claimed that his exception related. The amendment strikes out the words quoted by the appellant. The justice allowed the amendment, and his decision was correct. The appellant is entitled to have the benefit of what he said when he excepted. That is sufficient to enable the appellate court to decide to what part of the charge the exception relates.

The proposed case, in some instances, contains exceptions by one of the defendants to the charge of certain requests made by the other defendant, where the court charged as requested, and inserted an exception at the end of each request. The stenographer’s minutes do not show that any such exception was taken at the time of the charge and of each request, but they do show that certain exceptions were taken at the close of the body of the requests. In such cases the appellants are entitled to the insertion of their exceptions at the stage of the charge at which they were made, and not elsewhere.

These -suggestions seem to cover all the questions, and will, perhaps, assist the learned justice in a resettlementbut we do not mean to be understood as suggesting that he is bound to act in any way contrary to his own recollection of what actually occurred on the trial.

The order appealed from is reversed, without costs, and a resettlement of the case and amendments ordered.

All concurred.

Order appealed from reversed, without costs, and a resettlement of case ordered.  