
    Franklin B. Lord, as Executor, etc. Resp’t, v. John Van Gelder, App’lt.
    
      (Supreme Court, Appellate Term, First Department,
    
    
      Filed Feb’ry 26, 1896.)
    
    1. Appeal—Charge.
    . Error cannot be predicated on an instruction which assumes facts where no objection was made at the trial.
    3. Same—Practice.
    Where the defendant, desires to raise a question for the general term upon the occurrences at the time the jury were polled, the proper practice is to have a statement of the facts settled and inserted in his case on appeal from the order denying his motion for a new trial.
    Appeal from a judgment affirming an order made at trial term denying defendant’s motion to amend the order, denying his motion for a new trial on the judge’s judge’s minutes, by inserting therein reference to affidavits containing statements as to what occurred when the jury was polled, after rendering their verdict in favor of the plaintiff.
    Rufus D. Livermore, for app’lt: George Lord Day, for resp’t
   DALY, P. J.

The defendant’s affidavits alleged that the seventh juror, when asked if the verdict was his, asked certain questions, and then declared he was for the defendant. The plaintiff’s affidavits alleged that the juror answered in the affimative when asked if the verdict in plaintiff’s favor was his, and afterwards , asked if a certain five per cent, included in the verdiet was for the defendant; that other jurors unanimously stated that the whole matter had been explained to him in the jury room, and that it was all understood; that, the juror’s, objection seemed to be explained away to his satisfaction, and he appeared to assent to the verdict The assent of the juror to the verdict must have been understood by the trial justice, for he denied the motion for a new trial; but, however that may be, the motion to recite these affidavits in the order denying that motion was properly refused. The affidavits were not used upon the motion, and, therefore could not be recited nor referred to in the order denying it. The motion w,rs made immediately after the verdict on the 14th of March, 1895, and the order denying it was entered the same day. The affidavits which defendant asked to have rociied in it were not made until the 22d, 28th, and 30th of March, and the 1st of April, 1895, respectively. If defendant desired to raise a question for the general term upon the occurrences at the time the jury were polled, the proper practice would have been to have a statement of the facts settled and inserted in his case on appeal from the order denying his motion for a new trial. Weeks v. Hart, 24 Hun, 181.

Order appealed from affirmed, with costs and disbursements.

All concur.  