#### New York Rubber Company, App’lt, *v.*John Rothery and William Rothery, Resp’ts.

*(Supreme Court, General Term, Second Department,*

*Filed June 28, 1889.)*

1. Practice—Re-settlement of case—Rights of parties on.

When a case is sejnt back for re-settlement, and is again presented to the judge who tried it, it is open to both parties to show the actual facts as they happened u]W the trial.

3. Same—Marking- request “ refused,” when not material.

The mere marking a request “ refused,” is not material, if in fact it was not refused in the presence of the jury.

3. Same—Refusal, when not available.

Nor can a refusal! be available unless an exception is taken at the time.

Appeal from ah order made on application to re-settle case on appeal.

*Lee & Lee,*for app’lt; *H. H. Eustis,*for resp’ts.

Pratt, J.

This motion presents an entirely different appearance from jvhat was presented upon the papers before the court of appeals. 12 N. Y. State Rep., 53.

That court helil, as appears from the opinion, that a “party is entitled as of strict right to have the case show the actual facts as they really _ happened on the trial, so that an appellate ¡court can decide the case upon a record, which is absolutely correct,” and in accordance with this principle the case was set back for resettlement.

When the case "¡was again presented to the judge, who tried the case, it was open to both parties, “to show the actual facts as thejy happened upon the trial and to this end the attorney of the defendants has made another affidavit and the judge has furnished a certificate stating his recollection of what topk place.

The defendants’ attorney denies most specifically and *693emphatically the material allegations made upon the part of the plaintiff, and such is the effect of the certificate of the judge.

This view is strongly corroborated by reference to the charge as delivered to the jury.

The only reasonable conclusion seems to be that the affiants are mistaken in supposing the rulings were read to the jury after the charge, or that the judge was notified of any exception that was taken to a refusal to charge the fifth request.

The plaintiff’s counsel undoubtedly notified the stenographer of his exception, but it does not seem possible, upon reading the charge in connection with the affidavit of Mr. Hustis, that such an exception presented to the judge would have escaped his attention.

The mere marking the request *“*refused ” was not material, if, in fact, it was not refused in the presence of the jury. Neither could a refusal be availed of unless an exception was taken at the time.

It has clearly enough appeared at all times that the marking of this request “ refused” was a mistake, but it clearly appears now that, in fact, it was not refused, and, further, that no exception was taken nor any objection raised that the charge did not comply with all the requests presented.

Order affirmed, with costs.

Dykman, J.

This is an appeal from an order made upon the motion to resettle the case in this action, but we think it cannot prevail. Under the decision of the court of appeals the case was to be resettled, and that has now been done by the insertion of the history of the fifth request to charge the jury. Such statement contains the facts, and will enable the appellate tribunal to determine the legal effect of the request to charge, and the disposition made of the same by the trial judge.

The decision of the court of appeals did not dictate the mode of settlement to be pursued in obeying the same, and chat was obviously left to the determination of the trial judge.

We think the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., not sitting.