Opinion
Argued April 1st, 1869
Decided June 11th, 1869
A.J. Vanderpoel, for the appellant.
D. McMahon, for the respondent.
It is conceded by the appellant's counsel, that the most of the propositions in the judges charge are correct, and I take it to be well settled, therefore, that the defendant's exception to the charge is too general to be of any avail to the defendant on this appeal. The exception was "to the charge made by the court, and each and every part thereof." This is quite too general. It was held in the case of Hart v. The Rensselaer and Saratoga Railroad Company (4 Seld. R., 37), that if the charge of the court contain two propositions, and there is a general exception to the charge, a new trial will not be granted, if either of the propositions are correct. It was held in the case of Osgood v. Osgood (2 Seld. R., 233), that a general exception to the whole of the charge of the court, and each part of it, when the charge involves more than a single proposition of law, and is not in all respects erroneous, presents no question for review upon appeal. The rule is settled in this court, that a general exception to a charge containing distinct propositions is unavailing, unless the party excepting can show that each proposition is erroneous to his prejudice. ( Haggart et al. v. Morgans, 1 Seld. R., 422), and the case is not different where the exception is to the whole, and each and every part of the charge. ( Jones v. Osgood, 2 Seld. R., 233; Caldwell v. Murphy, 1 Kern. R., 416.) In the latter case, the exception taken at the conclusion of the charge, was to each and every part of the charge, and it was held in this court to present no question for review, as some portions of the charge were unobjectionable.
The defendant's exceptions to the judge's refusal to charge are equally untenable. The defendant's counsel submitted thirteen distinct written propositions, upon which he requested the judge to charge. These propositions were submitted to the judge before his charge was made, and his charge substantially embraced them all, as I read it, and it is conceded that, as to most of the propositions, the charge was unexceptionable; and where the propositions are so numerous, and the judge's charge covers them generally, it is the duty of counsel to call his attention particularly to any one upon which more definite instructions are desired, to make an exception to his refusal available. ( Zabriskie and others v. Smith, 3 Kern. R., 323.) An exception to a refusal to adopt, in gross, a series of propositions in the form of a request to charge, is unavailing, if the judge's charge covers the propositions substantially. The attention of the court should be drawn to each, and each should be subject of a specific ruling by the judge, and a specific exception by the party. ( Magee v. Badger and others, 34 N YR., 247; Hunt v. Maybee, 3 Seld. R., 273; Magie v. Baker, 14 N.Y.R., 434.) Here were thirteen distinct propositions submitted, and the judge charged, as he believed, embracing them all, and refused to charge further, and the defendant's counsel barely excepted to the refusal, as to each proposition, without in any manner calling the judge's attention to the portions he was dissatisfied with, which is little more than a general exception to the whole. It was an exception applying in terms to each and all of the thirteen propositions, as well those which the defendant concedes were fully charged, as those of which he complains the charge was not sufficiently explicit. When the judge had completed his charge, it was the duty of counsel to call his attention to any portion where he desired more specific instruction.
Assuming, however, that this exception is sufficient to bring under review in this court all of these thirteen propositions, in connection with the whole charge, and that we are to review the whole charge, embracing thirty-two folios of the printed case, then I have to say that an attentive examination of these requests and the charge of the judge, has satisfied me that the charge has substantially covered them all and is substantially correct. The judge is not obliged, in his charge, to adopt the language of counsel, but is at liberty to employ his own, and is not guilty of the imputation of error if he charges the request made upon him substantially correct. If anything in these requests can be said to be omitted or not specifically noticed in the charge, they are of matters which the evidence in the case did not call for the charge, or else an excuse is found in the fact that the judge should not have assumed the facts which it belonged to the jury to say whether they were established by the evidence or not.
All the judges concurring, judgment affirmed.