
    MIUSTER v. BEUOHOL.
    (Supreme Court, Appellate Term.
    January 10, 1901.)
    Appeal—Review—Instructions—Refusal—Record—Presumption.
    Where requested instructions in favor of the defeated party were not only refused, but excluded from the record by the refusal of a request to have them noted by the stenographer, it cannot be assumed that they were but repetitions of instructions given, and the judgment should he reversed.
    Appeal from city court of New York general term.
    Action by Louis Cass Minster against David J. Beuohol. From a judgment for plaintiff, affirmed by general term (66 N. Y. Supp. 493), defendant appeals. Beversed.
    Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.
    Coudert Bros. (John P. Murray, of counsel), for appellant.
    Wahle & Stone, for respondent.
   PER CURIAM.

The refusal of the trial justice to accept the additional requests submitted by counsel for the defendant, and especially the refusal of the court to have them noted by the stenographer when so requested by counsel, constitute a fatal error in the conduct of the trial requiring a reversal of the judgment. Chapman v. McCormaik, 86 N. Y. 479; O’Neil v. Railroad Co., 129 N. Y. 125, 29 N. E. 84; Pfeffele v. Railroad Co., 34 Hun, 497. As the requests in question were improperly excluded from the record by the trial justice, and are, therefore, not before us, we cannot assume that they were but repetitions of the instructions given to the jury.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.  