#### Thomas E. Walker, Resp’t, v. The Second Avenue Railroad Company, App’lt.

*(New York Superior Court,*

*General Term,*

*Filed June 29, 1889.)*

1. Exceptions—To refusal to charge—When available.

Exceptions to refusals to charge, not taken at the time of the ruling of the court, and before the jury have rendered their verdict, have no validity as exceptions, and cannot be heard upon appeal.

3. Same—Case must show directly refusal to charge request.

It is the duty of the defendant to present to the appellate court a case showing directly, and not inferentially that it had requested the trial judge to charge certain propositions and that defendant had excepted to the refusal.

Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes.

*Augustus S. Hutchins,*for app’lt; *Charles A. Flammer,*for resp’t.

Sedgwick, Ch. J.

The,action was for damages from alleged negligence of defendant’s servants.

The case was tried upon a theory adopted by both sides, and in view of that, the denial of the motion to dismiss the complaint, or for a direction to the jury in favor of the defendants was not erroneous. There were certain exceptions taken to the refusal of the court to charge certain requests made by the defendant. ■ I wish to notice that it does not appear directly by the case, that the court made the refusal. It only appears by construction or argumentatively.

Assuming that there were refusals, the case shows that the exceptions to them were made after the jury had retired to deliberate. The appeal assumes that the requests were made before the jury had retired. If they had not been, a refusal would have been justified on that ground. But exceptions to refusals, not taken at the time of the ruling of the court, have no validity as exceptions, and cannot be heard upon the appeal. It is an exception to the charge as made, which can be taken at any time before the jury have rendered their decision. Code Civ. Pro., § 995.

There was no exception to the charge. The court had charged that the jury might consider the effect of certain things, in assessing damages for the loss of services, and *962then proceeded: “All these elements are to be considered, and the pain that she has undergone, so far as it prevented her from being of this use to the parent, all these things are to be considered in making up your opinion as to the amount of damages.”

The defendant’s counsel excepted to the charge “that the pain that she has suffered may be considered with the other elements of the case.” The court had not charged that, but charged that the jury might consider the pain so far as it prevented the child from being of use to the plaintiff. It is then argued that there was no evidence that pain had diminished the quantity or affected the quality of the services. If this be the objectionable part of the charge, then the charge being right in principle, the attention of the court should have been directed to the particular thing which was the ground of the objection.

It does not appear to me that the testimony would not have permitted the jury to find that in consequence of pain, the plaintiff could not do services that she had been in the habit of performing, so as to entitle the plaintiff to nominal damages at least, on this account. But the exception did not refer to this matter of the amount that might be found by the jury.

The judgment and order should be affirmed, with costs.

Freedman, J., concurs.

Truax, J.

I am of the opinion that the case does not show that the trial judge refused to charge as requested by the defendant, or that the defendant excepted in a proper manner to any refusal. It was the duty of the defendant to see that all exceptions upon which it intended' to rely were properly noted. It was also the duty of the defendant to present to the appellate court a case showing directly, and not inferentially, that it had requested the trial judge to charge certain propositions, and that it, the defendant, had excepted to such refusal. *Briggs*v. *Waldron,*83 N. Y., 586.

I concur in the opinion of the chief judge.