De Leon v. Echeverria

13 Jones & S. 240

• Court: The Superior Court of New York City
• Decided: April 7, 1879
• Status: Published

Opinion

By the Court.—Van Vorst, J.

Exceptions to the judge’s charge to the jury must be taken before the jury have rendered their verdict. They must be reduced to writing at the time, or entered on the minutes (Code, § 995). As this is a matter of substance, to obviate errors in the trial, and in which the rights of the other side are materially concerned, it is not in the power of the judge to allow exceptions to the charge which have not been formally taken before the verdict. The affidavits show that the plaintiff s counsel knew of no such large liberty in respect to the taking of exceptions as is claimed by the defendant’s counsel to have been extended by the judge at the close of his charge; that he never consented to the extension of such liberty.

As the exceptions were not taken at the time and in the manner provided by the Code, they could not afterwards be allowed, and the judge properly excluded them from the case.

It would seem, from all the facts before us, that when the judge who presided at the trial gave the defendants’ counsel liberty to draw up his exceptions afterward, that the exceptions he had in mind were not the same as those intended by the defendants’ counsel. We do not see how the misapprehension existing can be now corrected. Exceptions not taken in season, although intended to be, cannot afterwards be allowed, in opposition to the requirements of the Code, and to the manifest injury of the other side.

We cannot interfere with the amendments made to the case by the judge, as he is to determine what transpires before ,him, and may correct and settle the case according to what he determines to be, from his memory, and the facts before him, the truth.

The order appealed from is affirmed.

Sedgwick, J., concurred.