Upon an examination of the record in this case there does not appear to he any question presented to this court for review. No exceptions were taken during the course of the trial by the appellant. It is true that'the appellant asked to go to the jury, but no exception whatever was taken to the refusal of the court to permit him so to do. Neither was any exception taken by him to the action of the court in dismissing the complaint.
It is true that a motion for a new trial was formally made, which was subsequently argued upon the grounds then stated, none of which referred to any exception as taken, or assumed that any had been taken, and which was denied. As a motion for a new trial, in a case where a direction has been given dismissing the complaint, can only be founded upon exceptions (Code Civ. Proc. § 999), no question whatever was presented to the court by such motion.
By the prevailing opinion an exception has been imported into the case which nowhere appears upon the record. The question to the plaintiff’s counsel: “ Do you make a motion for a new trial ? ” Yes,” in no way indicated, upon the part of the court, that an exception had been taken by the counsel to the ruling which had been made, and upon which only the. motion for a new trial could be founded. As has. been stated, when the counsel came to make his motion for. a new trial he.no where founded it upon any exception which, he claimed, had been taken to the rulings of the court. The order entered upon the motion for a new trial was silent as to its haviug been made upon exceptions, and the court refused to resettle that order because, evidently, the order truly expressed in that regard what had taken place before the court.
I think it is too late, after a case has been presented to the Appellate Division, for this court to amend the record by inserting exceptions which it does not appear were ever taken or thought of upon the trial.
Judgment reversed, new trial ordered, costs to appellant to abide event.