
    Samuel Rubenfeld, an Infant, by Hermann Rubenfeld, his Guardian ad Litem, Appellant, v. Meyer Rabiner and Abraham J. Rabiner, Respondents.
    
      Appeal from a judgment where no exceptions were taken—when an exception must he taken—new trial on the ground of surprise—failure to state the fact of the surprise upon the trial.
    
    An appeal from a judgment brings up for review only the record and the exceptions taken upon the trial; and where the record is unimpeached and no exceptions were taken upon the trial of the action, the judgment must necessarily be affirmed; f
    
    An exception to. a ruling cannot be taken after the jury has been, discharged.
    In an action brought to recover damages sustained by the plaintiff from being run over by a horse and wagon in consequence of the negligence of the defendants’ driver, the defendants, in their answer, admitted that they were the owners of a certain horse and wagon which they used in their business, but denied the allegations of the complaint with regard to the accident, the negligence of their driver’ and the plaintiff’s injury, and alleged contributory neg- ' ligence on his part.
    On the trial of the action the defendants gave testimony tending to show that the driver of the wagon which ran over the plaintiff was not in their employment at the time of the accident, but was then doing business upon his own’ account under an arrangement with the defendants, whereby they sold certain merchandise to him, and furnished him with the horse and wagon, by which the plaintiff was injured, for use in his independent business of selling such merchandise upon his own account to his own customers. The plaintiff’s counsel stating that he had no further evidence on the subject, the court directed a verdict for the defendants. . ;
    On affidavits contradicting defendant’s witnesses as to the driver’s relation to the defendants, a motion was made for a new trial on the ground of surprise and newly-discovered evidence,, the motion being based also upon the exceptions and the ground that the verdict was contrary to the evidence and contrary to law.
    
      Held, that a new trial’could not be granted upon the exceptions, for no valid ones were taken; or because the verdict was contrary to evidence or contrary to law, because the evidence supported it; or because of newly-discovered evidence, since the evidence adduced merely impeached the defendants’ witnesses, and was accessible at the time of the trial.
    
      Also held, that while the testimony thus given by the defendants might have been admissible under the pleadings; it was not testimony that a practitioner of ordinary prudence would have anticipated, and that the plaintiff’s counsel ' might properly have applied for an adjournment or for leave to withdraw a juror, but having failed to do so, or to make any suggestion that he had been surprised, or to take any exception to the direction of a verdict in favor of the defendants, he was not entitled to a new trial on the ground of surprise,
    
      Appeal by the plaintiff, Samuel Rubenfeld, an infant, by Hermann Rubenfeld, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 27th day of January, 1898, upon the verdict of'a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 17th day of January, 1898, denying the plaintiff’s motion for a new trial, made upon the ground of surprise, because of .newly-discovered evidence, upon exceptions, because the verdict was contrary to the evidence and contrary to the law, on the variance between the defendants’ proof and answer and in order that-injustice might not be done to the plaintiff.
    
      Wm. McM. Speer, for the appellant.
    
      George W. Schurman, for the respondents.
   Barrett, J.:

This action is for personal injuries. The plaintiff in his complaint alleged that the defendants were the owners of a certain horse and wagon, which they used in their business; and that he was run over by this horse and wagon in consequence of the negligence of the defendants’ driver. The defendants in their answer admitted that they were the owners of a certain horse and wagon which they used in their business. They denied all the allegations contained in the 4th paragraph of the complaint with regard to the accident, the' negligence of .their driver and the plaintiff’s injuries. They then alleged that, if the plaintiff sustained any injuries as stated in his complaint, they were caused by his own, or his parents’ negligence, and not by the negligence of the defendants or their servants. . Upon substantially these issues the plaintiff went to'trial. The defendants’ business was that of bottling mineral waters. It was transacted under the name of the Metropolis Bottling Company, and the company’s place of business was at Ho. 119 Chrystie street in the city of Hew York. The plaintiff gave evidence as to the facts of the.accident and his injuries. As to the defendants’ relation thereto, he contented himself with proving that the name on the wagon in question was' “Metropolis Bottling Company,” and the street address “Ho. 119 Chrystie street;” that the name above the door of 119 Chrystie street was “Metropolis Bottling Company;” that the company’s office there was the defendants’ office; and that a gentleman'in this office, representing himself to be one of the defendants, admitted' to one of his (plaintiff’s) witnesses that the firm had horses' arid .. wagons around the city. One of the defendants, who was called as a witness for the plaintiff, also¡ testified that on the day on- which the accident occurred his firm had two horses and wagons which "were being used in the delivery of its goods. ...

The defendants then proved, or rather gave testimony tending to prove, that the driver of the wagon which ran over the plaintiff (one . Hirsch) was not in their employ at. the time of the accident.; that Hirsch was then doing business upon his bwn account under an arrangement with the defendants, whereby they sold to him directly their mineral waters and'furnished him with the horse and'wagon in question for use in his, Hirsch’s, independent business of selling » such waters upon his own account to his own customers. ■ This testimony was not rebutted by the :plaintiff, and the learned trial judge at the close of the case asked the plaintiff’s counsel whether he expected to give any evidence of the character of the employment . of Hirsch and his relation to the defendants. To this inquiry the learned counsel replied that the. plaintiff had nó ■ evidence on that subject further than that which was originally put in. The learned trial judge thereupon directed a verdict for the defendants, holding • that upon the uncontradicted evidence the relation of master and servant did not, upon the occasion in question, exist between the-defendants and Hirsch. No exception was taken to this ruling'and a verdict for the defendants was accordingly entered as thus directed.. There was no objection to this 'course, and no suggestion or request of any kind was made, with regard to the learned judge’s action. The jury was then discharged. Thereafter the plaintiff came, into. court'and formally excepted to the learned judge’s rulings. Subsequently he made'a motion for a new trial upon-the exception, so taken, also upon the'grounds of surprise and newly-discovered evi- • dence, and also because, as claimed, the verdict was contrary to the evidence and contrary to the law. This motion was denied,'and from the order denying it this appeal is taken. ' After the denial of the motion the defendants entered judgment against the plaintiff, . and from this judgment the plaintiff also appeals.

It is quité evident that the appeal from the judgment cannot be , sustained. There, is, in fact, nothing to review upon that appeal. An appeal from a judgment brings up for review only the record and the exceptions taken upon the trial. As the record here is unimpeaclied, and as no exceptions were taken upon the trial, the judgment must necessarily be affirmed. The exception attempted to be taken after the termination of the trial and the discharge of the jury was not authorized by law. Provision is made in the Code of Civil Procedure (§§ 992, 995) for exceptions upon the trial of issues of fact by a court and jury. Section 99o pro vides that an' exception to a ruling must be taken at the time when the ruling is made unless it is taken to the charge given to the jury. In the latter case it must be taken before the jury have rendered their verdict. " There is no provision for an exception after verdict, still, less for an exception after the discharge of the jury.

The real question here arises upon the appeal from the order denying the motion for a new trial. It is quite clear that the verdict was not contrary to the evidence nor contrary to the law. Upon the evidence as it stood when the case was closed there was nothing to be done save what was done. The evidence negativing the relation of master and servant between the defendants and Hirsch was uncontradicted, and the court was not even asked to submit to the jury the credibility of the defendants’ witnesses on that head. Hor was the plaintiff .entitled to a new trial upon the ground of newly-discovered evidence. The affidavits show that this evidence tended merely, to • impeach or contradict the defendants’ witnesses. But they also show that even this evidence was quite accessible. The plaintiff’s counsel ■ looked for it just as soon as he saw the necessity for having it, and it was immediately and readily procured. There can be no doubt, however, that this evidence, if at hand upon the trial, would have sufficed to prevent the direction of a verdict. ' It tended to rebut the defendants’ testimony, and to discredit the statements of their witnesses. . One, at least, of the newly-discovered witnesses deposed that mineral waters as to which Hirsch claimed ownership were purchased by his employer, not from Hirsch, but from the Metropolis Bottling Company. He.also deposed that payments for these waters were made to this company, and that he'never saw Hirsch take any money in payment therefor. Thus, if the plaintiff had brought himself within the rules which govern with regard to applications for new trials upon the ground of surprise, he showed enough to invoke a favorable exercise of discretion. That is, he showed that if he had had any notice or intimation of the defense to which the defendants’ testimony was addressed, he might have come into court prepared with evidence which would at least have required the submission of the question of fact as to. Hirsch’s agency to the jury. That he was surprised by the. testimony adduced by the defendants ■ is quite probable. And that surprise was entirely natural. While the testimony given by the defendants may have been, admissible under the pleadings, it was not testimony that a practitioner of ordinary prudence could have" anticipated. The defendants had admitted in their answer the ownership of a horse' and wagon as averred in . the complaint. They had apparently denied only the negligence of their servant with regard to the-driving of such horse and wagon. And yet, analytically considered, the denial doubtless- covered the agency'.as well. Almost any one^ however, even the most skilled.in the profession,, might have been deceived by the'form and tenor of such an answer. Them was no affirmative plea as to the arrangement with Hirsch'—nothing to call the plaintiff’s attention to the defense really contemplated on, that head. • If the plaintiff’s counsel upon the offer of the defendants’ evidence or after it was put-in had made known his . predicament to the learned judge, doubtless he would have been relieved. An adjournment might have been - granted, or leave given to withdraw a juror. ' But nothing of the kind was requested. There-was no suggestion of surprise... The coúnsel relied .upon his affirmative proof, and seemingly took his chances upon the- ruling of the court. The rule is well settled that a plaintiff who is surprised by evidence which he is not prepared to rebut should move for an adjournment or for leave to withdraw a juror-; otherwise he is not entitled to a new trial on the ground of siirprise. (Baylies N. Tr. & App. 531, and cases there cited; Messenger v. Fourth Nat. Bank of the City of New York, 6 Daly, 190 ; Soule v. Oosterhoudt, 20 Wkly. Dig. 67; Glendening v. Canary, 5 Daly, 489; affd., 64 N. Y. 636.) It is true' that this rule is not indexible, as where reliance is placed upon statements, made by the- . defendant’s counsel before the trial. Unfortunately for the plaintiff, however, nothing whatever is here shown, to justify a departure from the general rule. It is true that the plaintiff’s attorney was informed by one of the defendants prior to the trial that their defense would be that the injuries sustained by the plaintiff were caused by the act of a furniture van and the child’s own negligence. No statement, however, was made upon the subject of their relations with Hirsch, nor did they avowedly limit their defenses to those disclosed. The plaintiff’s counsel was certainly not prevented by any statement of the defendants from at least proclaiming his surprise upon the trial, if, in fact, he was then surprised. As we have seen, he did not except to the ruling of the court; apparently, he submitted to it. He did not ask for time to look into the facts which he now says were such a complete surprise to him, or to make inquiry as 'to their truth. We are constrained, therefore, upon this record, to say that he has not brought himself within the rule to which reference has been made, nor within any known exception to that rule.

It follows that the order denying the plaintiff’s motion for a new trial was correct, and should be affirmed, with costs. The judgment must also be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment and order affirmed, with costs.  