Hill v. Warner

Ordered that the case herein be remitted to the trial justice, to the end that the same may be amended so as to contain the exceptions, if any, taken by the defendant’s counsel to the refusal of the court to submit certain questions of fact to the jury, and to the direction by the court of a verdict in favor of the plaintiff upon payment of the costs of the former argument, and $10 costs of this motion. And it is further ordered that, in the event that the case shall be settled in the manner above indicated, the defendant’s motion for a reargument in this court is granted. ' All concur except HARDIN, P. J., and FOLLETT, J., dissenting: See 42 N. Y. Supp. 1126, 47 N. Y. Supp. 1138, and 48 N. Y. Supp. 1106.

I dissent on the ground that the trial court cannot permit exceptions not in fact taken to rulings made on the trial to be inserted in the record after the conclusion of the trial, without the consent of both parties. Section 995 of the Oode of Oivil Procedure. The defendant does not assert that he actually took the exceptions which he now wishes to have inserted in the record. Again, the motion should be denied because of the laches of the defendant. The verdict was rendered September 12, 1895. December 15, 1896, the judgment entered on the verdict was affirmed by this court, and in the memorandum published on the following ‘day (42 N. Y. Supp. 1126) it was stated that certain questions discussed could not be considered, because no exceptions were taken to the rulings. In the face of this the defendant appealed to the court of appeals, and, after withdrawing his appeal to that court, asks, in effect, that this court vacate its former judgment, and allow the defendant to go before the trial judge, resettle the case, and then bring his appeal before this court for a second review.

in dissenting," concurs with the views stated by FOLLETT, J., and.also upon the ground that the appellant, by waiver and laches, ought not to be permitted to present the case again to the trial judge for resettlement.