
    TOPLITZ a. RAYMOND.
    
      New York Common Pleas;
    
      Special Term, February, 1859.
    Case.—Motion for New Trial.
    Upon a motion for a new trial founded on a case, which motion was made before the judge who tried the cause, the case, as agreed upon by the counsel, stated a charge to have been made which was materially-differen.t from that which had been actually made by the judge.
    
      Held, 1. That the charge should be stricken out of the case, and a correct account of the charge inserted.
    2. That, as the judge still adhered .to the views expressed in the charge.as sq stated, the motion should be denied.
    
      But exceptions which were contained in the case thus agreed on should not be stricken out, although the judge’s notes of the trial did not mention that any such were taken.
    Motion for a new trial.
   Hilton, J.

The plaintiff moves for a new trial on a case which appears to have been agreed upon by the- counsel for the parties. In it is contained what purports to be the charge I gave to the jury on the trial, but which is so much at variance with the one which appears from my notes to have' been delivered, that I have felt constrained to disregard that part of the case, and insert, in lieu of it, the charge actually made, so far as it is material for all purposes of review.

In saying so far as material, I mean that the charge I have written out contains all the propositions which were presented by me for the consideration of the jury.

I do not find in my notes any memorandum of a request to charge, or of an exception to any part of the charge as delivered ; and although this would be sufficient to justify ,me in striking out all exceptions calculated to bring the views I did express to the jury before the general term for review, yet I have not done so, because I desire that the consent of counsel in this respect shall have full effect, so that if I committed any error it may be remedied upon appeal.

The opinions I expressed to the jury I still adhere to. If they are correct, then the questions-were of fact for the jury to determine from the evidence, and their verdict cannot be disturbed. The motion for a new tidal is denied, with $10 costs.  