#### Fannie Brauer, as Administratrix, etc., of Paul Frederick Brauer, Deceased, Respondent, *v.*New York City Interborough Railway Company, Appellant.

First Department,

December 24, 1908.

Appeal — case — exceptions.

Objections to statements of counsel in the summing up ■which result in instructions by the judge to the jury not to consider such statements, should not be inserted in the case on appeal where no exceptions were taken to the ruling of the court.

But exceptions to the rulings of the court in relation to the summing up should be inserted, and also all exceptions taken at trial, whether the trial court thinks them worthy of consideration by the appellate court or not.

Appeal by the defendant, the New York City Interborough Bailway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of November 1908, denying the defendant’s motion for a resettlement of the case on appeal herein.

*385
      *Bayard H. Ames,*for the appellant.

*Joseph Beihilf,*for the respondent.

Ingraham, J.:

This action was to recover damages for personal injuries resulting in the death of the plaintiff’s intestate. Plaintiff had a verdict and the defendant appealed and served a case, to which the plaintiff served amendments. Upon the settlement of the case the trial judge allowed certain of the plaintiff’s amendments, striking out exceptions taken by the defendant to the summing up of the plaintiff’s counsel. Subsequently the defendant made a motion to restore the summing up and the exceptions taken thereto. That motion was denied, and the defendant appeals.

These proposed amendments related solely to counsel’s summing up. Some of this was,improper, but as the objections in most cases resulted in the instruction by the judge to the jury not to consider the statements, and no exception was taken, there was no question presented for review. Counsel did except in several instances to the ruling of the court in relation to the summing up, and those exceptions, I think, should be inserted in the case.

In submitting the amendment striking out lines 23 to 31 on page 165 of the case to the trial judge, counsel for respondent said that while there was an exception, the matter was not worthy of consideration by the appellate court. It is hardly the province of the trial judge to determine what exception would or would not be proper to be presented to the appellate court, and I think that amendment should have been disallowed, as it was conceded that there was an exception and the appellant was entitled to have the exception presented on his appeal.

The same applies to amendment 122, which was to strike out lines 13 to 33, inclusive, on page 167 of the proposed case. The counsel for respondent said that while there was an exception, it was purely argumentative. I think the defendant was entitled to have that exception appear in the record. The same applies to lines 13 to 24, inclusive, on page 171. There counsel took an exception.

I think the order should be reversed and the case remitted to the *386trial judge with instructions to disallow those amendments where an exception was taken, with ten dollars costs and disbursements to the appellant to- abide the result of the appeal.

Laughlin, Clarke, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to appellant to abide event, and case remitted as stated in opinion.