
    Adaline Niles, as Executrix, etc., of Charles H. Niles, Deceased, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
    
      Appeal — an order must recite'the papers used—review of an order striking out language used, in the opening and summing up of a cause — exceptions necessary.
    
    An exception must be taken at the time when a ruling complained of is made. It is not the habit of the Appellate Division to review questionable matter in the absence of objection.
    Upon an appeal by a defendant from an- order striking out of a case and exceptions certain language used by the plaintiff in his opening and summing up, the order appealed from did not recite the papers upon which it was granted, and it did not appear that objection was taken at the time of the opening or summing up, or that any motion was made to limit them.
    
      Held, that the order should be affirmed;
    That it must be presumed that, if a proper exception had been taken at the time of the opening and summing up, the court would have properly disposed of the questions raised;
    That, in the absence, of the papers upon'which the Special Term acted in granting the order, it could not be determined whether the discretion vested in the Special Term, with reference to settling a case and exceptions, had been abused or not.
    Appeal by the defendant, the New York Central and Hudson River Railroad Company, from ail order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 18th day of June, 1896, striking out from the proposed case and exceptions, on the application of the plaintiff’s counsel, words used by plaintiff in opening the case to the jury. Also striking out certain words used in “ closing the case to the jury,” which are set out.
    
      It appears by the order that the striking out of the language used in the opening and summing up, quoted in the order, was objected to and that the defendant excepted to the ruling striking out the language, and insisted the same should remain as a part of the case upon appeal. It appears by the appeal book herein that a verdict was-taken at the Circuit for $15,000 in favor of the plaintiff, and a motion was made on the part of the defendant for a new trial upon the minutes, and denied, as appears by a copy of the order set out in the appeal book, which order was granted on the 26th of October, 1895. On June 18, 1896, the ■ defendant appealed to this court from the order made on that day.
    
      Prescott & Titus, for the appellant.
    
      Evans & Lee, for the respondent.
   Hardin, P. J.:

The order from which the appeal is taken does not recite the papers that were used upon the application for .it. There ■ is no compliance with the rule which requires that an appeal shall he heard upon a certified copy of the papers used before the Court. (Code Civ. Proc. § 1353.) Rule 41 of the Supreme Court requires papers Used upon the application for an order to be printed. (Manhattan Railway Co. v. Taber, 31 Abb. N. C. 167.) There is nothing in the papers before the court to indicate that, when the opening was made or the summing up had, the matter which is now objected to by the appellant was objected to at the. time.the same was delivered at the Trial Term. There is a general provision of law that exceptions- must be taken at the time when a ruling is made. If a proper objection had been taken when the opening was made, or the summing up was had, it must be presumed that the trial judge would have properly disposed of the questions presented by the objection. In the absence of objection to the questionable matter it is not the habit of this court to review the same. (Mead v. Shea, 92 N. Y. 122.) Nor does it appear that any motion was made to limit the opening or the summing up. Nor was a ruling.had at the time of the occurrence thereof which presented a question for review. (People ex rel. Railroad Company v. Keator, 36 Hun, 592.) A trial judge has some discretian in settling a case. (Canzi v. Connor, 4 Abb. N. C. 148.) Whether the discretion in striking from the case the objectionable matter has been abused or not, cannot be determined in the absence of the papers upon which the Special Term acted at the time of granting the order appealed from.

New York Rubber Co. v. Rothery (112 N. Y. 592) differs from the case in hand. There, on a proposed amendment striking out requests to charge, and a refusal of an exception upon a motion for resettlement, it was held that' the refusal to grant the motion was error. The parties appeared and were heard, and presented papers in that case, and the Court of Appeals held that the appellant was entitled to have the case show the actual facts occurring on the trial, and considered the papers in extenso that were used at the time of the refusal of the order for resettlement. Undér such circumstances, it was held that the order denying the motion for resettlement was feviewable.

In Grossman v. Supreme Lodge of K. & L. of H. (5 N. Y. Supp. 122) a motion had been made to have the case resettled, and to have the. ruling of the court excluding certain evidence inserted, which motion was denied, and, upon the facts appearing at the time of the application for the order for resettlement, it was held that an error was committed. We see nothing in that case that aids the practice in this. We think the order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred, except Follett, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  