CANEPARI v. BERNHEIMER & SCHWARTZ PILSENER BREWING CO., Inc.
(No. 7729.)
(Supreme Court, Appellate Division, First Department.
November 5, 1915.)
Appeal and Ebbob <§=^516—Mattebs Reviewáble—Recobd on Appeal.
Where defendant objects and excepts to portions of the summing up by plaintiff’s counsel, he is entitled to have the address in the record, and its exclusion from the record is error, though his exceptions may not present a question of law, since the argument may have aided in increasing the verdict.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§' 2332-2340; Dec. Dig. <@=^>516.]
<gzs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Special Term, New York County.
Action by Mary Canepari, as administratrix, against the Bernheimer & Schwartz Pilsener Brewing Company, Incorporated. From an order denying defendant’s motion to resettle case on appeal, defendant appeals. Reversed, and motion to amend granted.
Argued before INGRAHAM, P. J., and McLAUGPILIN, LAUGH-LIN, CLARKE, and SCOTT, JJ.
Lowen E. Ginn, of New York City, for appellant.
Gilbert D. Steiner, of New York City, for respondent.
PER CURIAM.
We are of the opinion that appellant was entitled to have included in the case on appeal those portions of the summation by the respondent’s counsel which were taken down at defendant’s request, and upon which, in part, the appellant seeks to base his argument on appeal. It may be that the defendant’s exception did not raise a question of law. Upon that question we now express no opinion. The verdict, however, is a large one, and this court is entitled to consider and pass upon the question whether or not it is excessive. It may be that the character of the summing up by counsel would throw light on that question, and, whether or not defendant’s exception raised *407any legal question, it might be considered as a protest against the substance and manner of the summation, and forestall any suggestion that the objection thereto was an afterthought.
Order appealed from reversed, with $10 costs and disbursements, and motion to allow amendment granted.