Klein v. Second Avenue R. R.

Headnote

Settlement of ease on appeal—When order denying motion to resettle not appealable—Trial—Objectionable remarles of counsel, when must be

Appeal from order denying the defendant’s motion to resettle the case on appeal herein, by inserting therein an alleged extract from the remarks of plaintiff’s counsel to the jury in summing up, and by annexing to the case a certain envelope or piece of paper which had been marked for identification at the plaintiff’s request, but was excluded upon defendant’s objection when offered by plaintiff’s counsel.

The Court at General Term said :—“It was the duty of the judge before whom the case was tried to settle the case on appeal, and from his determination no appeal will lie. The case, as settled by him, must be presumed to correctly set forth what happened at the trial so far as it is necessary to properly review the questions presented. It is very evident, however, that the envelope not being in evidence, and there being no exception by defendant to its rejection, is no part of the case. The defendant also moved to have inserted in the case the remarks of counsel in summing up. It does not appear that any excep

tion was taken to the remarks of counsel, or that the attention of the court was called to the fact that what the counsel said was improper. It is evident, therefore, that the remarks of counsel were no part of the case.”

that the order was appealable, cited Marckwald v. Oceanic Steam Nav. Co., 8 Hun, 547 .

that the order was not appealable, cited Canzi v. Conner, 43 Super. Ct. 569 ; Porter v. Parks, 2 Hun, 675 ; Dambmann v. Shulting, 9 Rep: 487.