
    Marion Davidson, an Infant, by George Davidson, Her Guardian ad Litem, Respondent, v. New York City Railway Company, Appellant.
    First Department,
    November 22, 1907.
    Case on appeal — argument of counsel — motion to exclude plaintiff from court room.
    Arguments of coxmselover the admissibility of evidence have no place in a case on appeal when everything necessaxy to show the objection and the grounds thereof, the ruling of the court and the exception thereto otherwise appears.
    A defendant sued for negligence causing personal injuries is exxtitled to have appear in the record the ruling and exception on a.motion to exclude from the eoxirt room a maimed and mutilated infant .plaintiff, not produced with the intention of calling her as a witness.
    Appeal by the defendant, the Hew York City Railway Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 4th day of October, 1907.
    
      Bayard H. Ames, for the appellant.
    
      Edwin V. Guinan, for the respondent.
   Patterson, P. J.:

This appeal is from an order denying a motion to resettle a proposed case on appeal from a judgment-entered upon a verdict for the plaintiff in an action to recover damages for personal injuries.

When the proposed case on appeal and amendments thereto were submitted to the trial judge for settlement, lie allowed eight of such amendments which consisted largely of speeches made by counsel and colloquies between counsel and. the court with which it is unnecessary to incumber the record and which will in nowise be instructive or useful in considering, the merits of the appeal; but at the same time there are included in the allowed amendments, or some of them, matter which should have appeared in the record as it indicates the attitude of the court in making its rulings upon proffered testimony.

I think that the matter contained on page 34 down to and including line 9 on page 35 of the record now before us was properly allowed, as.it seems to be necessary to a full understanding of how the question arose .respecting the admissibility of evidence concerning a statement signed by a witness at the procurement , of some person claiming to represent the defendant corporation and the justice in settling the case also very properly allowed the proposed amendment No. 85, as appears in the present record, from and including line 10 on page 35 to and including line 18 on page 36.

The rémarks of the court and the speech of counsel for the defendant are. of no value on appeal. Everything necessary to show the objection of the defendant, the grounds of the objection, the ruling of the court and the exception of the defendant to the ruling otherwise appears. The court below was - also justified in expunging from the record so much of the proposed amendment No. 115 as appears in the record now before us, from line 19 on page 38 to and including line 16 on page 40. All the matter contained within those lines is simply the argument- of counsel, which would do very well in a brief, but is utterly irrelevant in a record. What appears between line 17 and line 26, both inclusive, on page 40, should have been allowed, because it states a ruling of the court as to what, it would leave to the jury,, a request of counsel for the defendant relating to it and the disposition made by the court of tliat request. Concerning proposed amendment No. 116, which was allowed, I think it was properly, allowed. Without intending by this ruling to indicate any opinion upon the subject-matter of this proposed amendment, what is therein stated presents part of the atmosphere of the case, which may or may not, when the whole case is considered, be regarded as having been prejudicial to the defendant at the trial. This amendment relates to the presence in the court room of the infant plaintiff in a maimed and mutilated condition, without the intention of calling her as a witness, and for the purpose of a dramatic display, to work upon the sympathies of the jury. It may, be that the plaintiff’s counsel had an absolute right to have the infant plaintiff in court during the whole trial, but it is evident that the appellant’s attorney intends to bring before the court a matter which may be worthy of consideration ; and .ina'smuch as it appears by this amendment that a request to exclude the child from the court room was made and was ruled upon, and an exception taken, the defendant is entitled to. have the merit of its exception passed upon by an appellate court. For that reason 1 think this amendment was properly permitted, simply for the purpose of allowing the question to be presented for whatever it may be worth. The record should also contain the matter printed on page 44 of the appeal papers on this motion, from and including line 3 to and including line 26, and the matter contained on page 45 from and including line 9 to and including line 17, and from and including line 22 to and including line 31. It should also contain the matter included in lines 11 and 12 on page 46, and from the word “and ” on line 30 of page 46 to and including the words “ incompetent and improper.” Also the matter contained on page 47, from and including the word “counsel” in line 29 to the end of that page, and on page 48 from and including line 1 to and including line 8.

The order appealed from should, therefore, be reversed and the case remitted to the court below, with directions that it be resettled to conform with the requirements of this memorandum.

Ingbaham, McLaughlin, Houghton and Scott, JJ., concurred.

Order reversed and case remitted to the court below as stated in opinion. Settle order on notice.  