Per Curiam:
The petitioner, William Hyams, filed his verified petition in this court, in which it is alleged that on the 17th day of May, 1899, a verdict was rendered in said action in the First Judicial District Court in favor of the plaintiff, and against the petitioner, for the sum of $14,475, and costs.
It is alleged that petitioner in due time filed his notice of motion for new trial in said action, and his statement on motion for new trial and on appeal; that said statement has been finally certified and settled by Hon. C. E. Mack, judge of said district court; that upon the settlement of said state[253]*253ment said judge of said district court refused to allow several certain exceptions taken by the petitioner, by and through his counsel, in accordance with the facts existing at the time said exceptions were taken.
And it is specified in the petition that the plaintiff- filed a demurrer to the defendant’s answer, and a motion to strike out all that portion of the answer referred to in subdivision 5 of the demurrer; that said demurrer and motion were argued and submitted together; that on the 22d day of December, 1898, the court sustained said demurrer as to subdivision 5 thereof, and granted said motion to strike out said portion of said answer; that petitioner duly excepted, and now excepts, to the sustaining of said subdivision 5 of said demurrer, and the granting of said motion to strike out said portions of said answer, “ and has assigned the same as error in his said statement”; that the said judge, in settling said statement, struck out said exception and assignment of error, and inserted the following, to wit: “ Said order sustaining plaintiff’s motion to strike out portions of the answer of defendants was not excepted to by either of defendants or their counsel,' and no bill of exceptions thereto was ever served, filed, or settled.”
It is reiterated in the petition that the petitioner has duly excepted to the sustaining of -said subdivision 5 of said demurrer, and to the granting of said motion to strike out said portion of said answer.
It is alleged that on the 25th day of August, 1899, the petitioner filed a bill of exceptions' to the granting of said motion to strike out; that said bill was settled by said judge; that, in the settlement of the said bill of exceptions, said judge struck out therefrom all reference to said ruling and to defendants’ exception thereto.
And it is alleged that, by reason of the facts aforesaid, the said judge has refused to allow plaintiff’s said exception to the order sustaining subdivision 5 of said demurrer, and to granting said motion to strike out said portions of said answer in accordance with the facts.
It is further alleged that, upon the trial of said action, the petitioner made, through his counsel, a certain offer; that an objection was made thereto by plaintiff’s counsel; that said [254]*254objection was sustained, and defendant took an exception thereto, to wit: “The full offer of the statute of limitations of New York, referred to on pages 95 and 96 of the stenographer’s report, and the objections and exceptions to the rulings, are as follows.” The alleged offer is stated, and the objections of the plaintiff thereto given, and then is added: “Objections sustained. Defendant excepts.”
It is then alleged that said offer, objections, rulings, and exceptions were set out in full in said statement on motion for new trial and on appeal, and that the judge, upon settlement of said statement, refused to allpw defendant’s exception,.in accordance with the facts, but struck the same from the statement.
It is further alleged “ that, at the trial of said cause, Mrs. Anna M. Warren, a competent and trustworthy shorthand reporter, was, by agreement of the respective parties and by order of the court, appointed and authorized, and duly sworn, to take the testimony in the case, and report the proceedings therein, and to transcribe the same, and file one copy with the clerk for the use of the court, and to deliver one copy to counsel on each side of the case; that said testimony and proceedings were so taken and written out by said shorthand reporter so authorized to make the same, and a copy thereof filed with the clerk of said district court in said case.”
It is alleged that the court gave certain instructions to the jury at the request of the plaintiff; that defendant filed certain objections to said instructions in writing; that, before the retirement of the jury in said cause, petitioner’s counsel arose, and excepted to the giving of each and all of said instructions, upon the grounds and for the reasons stated in said objections on pages 225 and 227, both inclusive, of said statement; that, upon the settlement of said statement, said judge refused to allow the petitioner’s said exceptions in accordance with the facts, but struck the same out.
It is alleged that the petitioner requested certain instructions to be given to the jury, which instructions the court modified and gave; that the petitioner’s counsel at the trial, and before the retirement of the jury, arose and excepted to the modifications of each of said instructions; that said exceptions were set out and stated on page 228 of said state[255]*255ment; that upon the settlement of said statement, said judge refused to allow said exceptions in accordance with the facts as set out in said statement, but struck the same therefrom.
It is alleged that the court refused to give certain instructions asked for by the petitioner for certain reasons indorsed thereon, and that in the settlement of said statement the judge struck out said indorsed reasons.
It is alleged that instruction No. 14 of the defendants was refused by the court; that the last word in said instruction, as it was in fact presented to the court, read “plaintiff”; that said last word should have been, and was intended by petitioner’s counsel to be, “ defendant,” but that by some clerical or typographical error or mistake it was written “plaintiff”; that petitioner inserted said instruction in his statement with said word reading “defendant”; that, upon the settlement of said statement, said judge struck from the instruction said last word, “defendant,” and inserted in lieu thereof the word “plaintiff”; and that by so doing said judge refused to allow defendant’s exception to the refusal to give said instructions according to the facts as in fact existing and as understood at the time of said request and refusal.
The petitioner refers to said statement on motion for new trial and on appeal, and to the testimony, records, and proceedings, etc., in the court below, and asks that they be taken to be a part of his petition, with the same force and effect as if herein fully set forth.
The petitioner prays that a time may be set for the hearing of the petition, and that petitioner be allowed to prove said exceptions, and that thereupon said exceptions, each and all of them, be allowed, and made a part of the record in said action.
The court gave the petitioner time to file affidavits, and to produce any of the records made in the trial court he wished, in support of said petition, and gave the respondent time to file counter affidavits, and any of said records he might choose, in opposition. The petitioner filed several affidavits, and presented to this court his statement on motion for new trial, the transcript of the testimony, and of the proceedings made by the reporter. The respondent filed several counter affidavits.
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Per Curiam:
The petitioner, William Hyams, filed his verified petition in this court, in which it is alleged that on the 17th day of May, 1899, a verdict was rendered in said action in the First Judicial District Court in favor of the plaintiff, and against the petitioner, for the sum of $14,475, and costs.
It is alleged that petitioner in due time filed his notice of motion for new trial in said action, and his statement on motion for new trial and on appeal; that said statement has been finally certified and settled by Hon. C. E. Mack, judge of said district court; that upon the settlement of said state[253]*253ment said judge of said district court refused to allow several certain exceptions taken by the petitioner, by and through his counsel, in accordance with the facts existing at the time said exceptions were taken.
And it is specified in the petition that the plaintiff- filed a demurrer to the defendant’s answer, and a motion to strike out all that portion of the answer referred to in subdivision 5 of the demurrer; that said demurrer and motion were argued and submitted together; that on the 22d day of December, 1898, the court sustained said demurrer as to subdivision 5 thereof, and granted said motion to strike out said portion of said answer; that petitioner duly excepted, and now excepts, to the sustaining of said subdivision 5 of said demurrer, and the granting of said motion to strike out said portions of said answer, “ and has assigned the same as error in his said statement”; that the said judge, in settling said statement, struck out said exception and assignment of error, and inserted the following, to wit: “ Said order sustaining plaintiff’s motion to strike out portions of the answer of defendants was not excepted to by either of defendants or their counsel,' and no bill of exceptions thereto was ever served, filed, or settled.”
It is reiterated in the petition that the petitioner has duly excepted to the sustaining of -said subdivision 5 of said demurrer, and to the granting of said motion to strike out said portion of said answer.
It is alleged that on the 25th day of August, 1899, the petitioner filed a bill of exceptions' to the granting of said motion to strike out; that said bill was settled by said judge; that, in the settlement of the said bill of exceptions, said judge struck out therefrom all reference to said ruling and to defendants’ exception thereto.
And it is alleged that, by reason of the facts aforesaid, the said judge has refused to allow plaintiff’s said exception to the order sustaining subdivision 5 of said demurrer, and to granting said motion to strike out said portions of said answer in accordance with the facts.
It is further alleged that, upon the trial of said action, the petitioner made, through his counsel, a certain offer; that an objection was made thereto by plaintiff’s counsel; that said [254]*254objection was sustained, and defendant took an exception thereto, to wit: “The full offer of the statute of limitations of New York, referred to on pages 95 and 96 of the stenographer’s report, and the objections and exceptions to the rulings, are as follows.” The alleged offer is stated, and the objections of the plaintiff thereto given, and then is added: “Objections sustained. Defendant excepts.”
It is then alleged that said offer, objections, rulings, and exceptions were set out in full in said statement on motion for new trial and on appeal, and that the judge, upon settlement of said statement, refused to allpw defendant’s exception,.in accordance with the facts, but struck the same from the statement.
It is further alleged “ that, at the trial of said cause, Mrs. Anna M. Warren, a competent and trustworthy shorthand reporter, was, by agreement of the respective parties and by order of the court, appointed and authorized, and duly sworn, to take the testimony in the case, and report the proceedings therein, and to transcribe the same, and file one copy with the clerk for the use of the court, and to deliver one copy to counsel on each side of the case; that said testimony and proceedings were so taken and written out by said shorthand reporter so authorized to make the same, and a copy thereof filed with the clerk of said district court in said case.”
It is alleged that the court gave certain instructions to the jury at the request of the plaintiff; that defendant filed certain objections to said instructions in writing; that, before the retirement of the jury in said cause, petitioner’s counsel arose, and excepted to the giving of each and all of said instructions, upon the grounds and for the reasons stated in said objections on pages 225 and 227, both inclusive, of said statement; that, upon the settlement of said statement, said judge refused to allow the petitioner’s said exceptions in accordance with the facts, but struck the same out.
It is alleged that the petitioner requested certain instructions to be given to the jury, which instructions the court modified and gave; that the petitioner’s counsel at the trial, and before the retirement of the jury, arose and excepted to the modifications of each of said instructions; that said exceptions were set out and stated on page 228 of said state[255]*255ment; that upon the settlement of said statement, said judge refused to allow said exceptions in accordance with the facts as set out in said statement, but struck the same therefrom.
It is alleged that the court refused to give certain instructions asked for by the petitioner for certain reasons indorsed thereon, and that in the settlement of said statement the judge struck out said indorsed reasons.
It is alleged that instruction No. 14 of the defendants was refused by the court; that the last word in said instruction, as it was in fact presented to the court, read “plaintiff”; that said last word should have been, and was intended by petitioner’s counsel to be, “ defendant,” but that by some clerical or typographical error or mistake it was written “plaintiff”; that petitioner inserted said instruction in his statement with said word reading “defendant”; that, upon the settlement of said statement, said judge struck from the instruction said last word, “defendant,” and inserted in lieu thereof the word “plaintiff”; and that by so doing said judge refused to allow defendant’s exception to the refusal to give said instructions according to the facts as in fact existing and as understood at the time of said request and refusal.
The petitioner refers to said statement on motion for new trial and on appeal, and to the testimony, records, and proceedings, etc., in the court below, and asks that they be taken to be a part of his petition, with the same force and effect as if herein fully set forth.
The petitioner prays that a time may be set for the hearing of the petition, and that petitioner be allowed to prove said exceptions, and that thereupon said exceptions, each and all of them, be allowed, and made a part of the record in said action.
The court gave the petitioner time to file affidavits, and to produce any of the records made in the trial court he wished, in support of said petition, and gave the respondent time to file counter affidavits, and any of said records he might choose, in opposition. The petitioner filed several affidavits, and presented to this court his statement on motion for new trial, the transcript of the testimony, and of the proceedings made by the reporter. The respondent filed several counter affidavits. The affidavits on each side set forth a great [256]*256many alleged facts which are entirely immaterial and wholly foreign to any matter properly involved in this proceeding.
With respect to the alleged exceptions taken to the ruling of the court sustaining said demurrer, and granting said motion to strike out said portions of the answer, it appears that the court granted said motion on the 22d day of December, 1898, and that no ruling was made on said demurrer. It appears that no exception was taken to the order granting said motion until the 25th day of August, 1899, over three months after the trial of the case, and over eight months after said order and ruling were made. On that day petitioner filed his bill of exceptions to the said order, and to an order made overruling his demurrer to the complaint, and therein it is stated “ that defendant William Hyams hereby excepts to the making and entry of each of said orders.”
Section 3784, Gen. Stats., provides: “During the progress of a cause a party may take his bill of exceptions to the admission or exclusion of testimony, or to the rulings of the judge on points of law. * * *” The alleged exception was properly disallowed, it not having been taken in proper time.
In reference to the alleged offer of counsel coixcerning the statutes of New York, it appears that in the said statement, on motion for new trial, the said offer was enlarged from the offer shown to have been made at the trial by said transcript made by the reporter, and that said statement contained alleged facts, with respect to the exceptions of the petitioner to the giving, the refusal to give, and to the modification of certain instructions, different from what are contained in said transcript; yet the petitioner refers to his said statement on motion for new trial, asks that it be considered a part of his petition, and he introduced it in evidence herein, and in his said statement, after stating that Mrs. Warren, by agreement of the parties and by order of the court, was appointed and authorized and duly sworn to take the testimony in the case and report the proceedings, and that she did so report the testimony and proceedings and transcribe the same, the petitioner says “that such testimony was given in evidence and rejected, and that objections were made, and rulings made and had and exceptions taken, as are therein set forth. [257]*257Said report and transcript of the testimony, proceedings, objections, rulings, and exceptions are as follows.” Then immediately following is inserted in said statement a copy of said transcript. We have examined said transcript and said statement several times carefully, and, if the court refused to allow any exception which is shown by said transcript to have been taken by petitioner “as therein set forth,” we have been unable to find it.
Petitioner now claims that said transcript does not set forth correctly his objections and exceptions taken at the trial in regard to the said instructions. The said reporter, by her affidavit, avers “ that, after the instructions asked and given to the jury in said action were read to the jury by the Honorable C. E. Mack, judge of said district court, affiant took down correctly in shorthand, and afterwards typewrote, the proceedings in the case, and exceptions taken by the attorneys for the respective parties in said action in excepting to the instructions, and that the following is a correct copy of her notes in shorthand taken at the time, and typewritten by affiant, which is hereto annexed, and marked 'Exhibit A,’ ” etc.
Then follows a copy of a part of said transcript containing the exceptions taken as to the instructions. She further testifies: “Affiant further says that no particular point of any exception was taken by defendant’s attorneys, or either of them, or was stated during said trial or afterwards, and that the failure to state the ground or particular point of exceptions was the subject of comment by W. E. F. Deal, one of plaintiff’s attorneys, to affiant immediately after said jury retired to consider their verdict.” The above affidavit of the reporter is corroborated by the affidavits of several other affiants. That the court struck out its reasons given for refusing certain instructions in settling said statement we regard as being wholly immaterial, and a matter we have nothing to do with in this proceeding. The said statement shows that said instructions were refused, and that petitioner excepted to such refusal.
As to the allegations of the petition concerning defendant’s instruction No. 14, it appears that the court restored the word “ plaintiff,” as it was in the instruction when presented to the [258]*258court and refused to be given, in place of the word “defendant,” as it appeared in said statement. This was making the statement conform to the facts with respect to said instruction when it was refused to be given, and in so doing the court did not certainly refuse to allow the petitioner the exception he took at the trial. The exception, as taken, was allowed.
Section 3213 of the General Statutes, on which petitioner bases this proceeding, provides: “The point of the exception shall be particularly stated, and may be delivered in writing to the judge, or, if the party require it, shall be written down by the clerk. When delivered in writing or written down by the clerk, it shall be made conformable to the truth, or be at the time corrected until it is so made conformable. When not delivered in writing or written down by the clerk as above, it may be entered in the judge’s minutes and afterwards settled in a statement of the case as provided in this act; provided, that if the judge shall in any case refuse to allow any exception in accordance with the facts, any party aggrieved thereby may petition the supreme court for leave to prove the same, and shall have the right so to do, in such mode and manner and according to such regulations as the supreme court may by rules impose, and such exceptions as are allowed by said supreme court, shall become a part of the record of the cause.”
If the petitioner had complied with the above provisions of the statute in taking his exceptions, there could have been made at the proper time and in the manner prescribed by statute a record of the exceptions taken, such as would have obviated any question as to what the exceptions were and how taken.
This court would not be justified in allowing exceptions alleged to have been taken and refused simply on the conflicting statements of witnesses based upon their memory of what occurred, but in such case the action of the court in reference to such exceptions, in its settlement of the statement of the case, either on motion for new trial or on appeal, or in settling a bill of exceptions, must be regarded as being correct.
It not appearing that the court refused any exception of [259]*259the petitioner as is set forth in said transcript of the testimony and proceedings by the said reporter, and said transcript being a record kept of said testimony and proceedings by agreement of the parties and authority of the court, and the only record kept thereof, the petition herein must be dismissed.
It is so ordered.