Gundersen v. Great Atlantic & Pacific Tea Co.

Order denying motion to resettle case on appeal affirmed, with ten dollars costs and disbursements. This court may not disturb the rulings of the trial judge in settling a case where an issue of fact arises as to whether an incident did or did not take place on a trial or an exception was or was not taken on a trial. In Zimmer v. Metropolitan Street R. Co. ( 28 App. Div. 504 ) there was no issue of fact arising as a result of conflicting contentions or affidavits. The lack of an exception will not disable this court from doing justice where a prejudicial ruling was made on an objection taken to an incident or a question. Lazansky, P. J., Kapper, Carswell, Scudder and Tompkins, JJ., concur.