I cannot concur in the opinion of Mr. Justice Hibsohbebg. . It is true that the counsel for the respondent went out of the record in summing up and introduced matter not in evidence. If there had been no - action by the court, dr if the court had refused to correct the counsel, the ■ case would have 'required our interposition. The question in - my mind is whether the court did not act as required by the case of Williams v. B. E. R. R. Co. (126 N. Y. 96), where the court said (pp. 103, 104): “ Where counsel in summing up pror ceeds to dilate upon facts not in evidence, or to press upon the jury considerations which the. jury would have no right to regard, it is, we conceive, the plain duty of the court, upon objection made, to interpose, and a refusal of the court to interpose, where otherwise the right of the party would be prejudiced, would be legal error; * * * The reading by counsel * * * of tlie newspaper article ‘ Only a Boy Peddler,’ was wholly irrelevant to the case. * * * The refusal of the court to -interfere, under the circumstances of this case, was legal error.” So, also, in People v. Mull (167 N. Y. 247, 255) it was said: “We do not mean to say -that such remarks of counsel are not within the power of the court, to cure either by prompt rebuke, or by instructing the jury to disregard them, or, better, by both methods. In most cases, no doubt* it can be done. The difficulty here is that the remarks of counsel passed without rebuke or dissent from the court, notwithstanding the objection of the defendant’s counsel, and thus apparently received the sanction of the court instead of its severe condemnation.”
In the case at bar the court did not refuse to interpose. When defendant’s counsel -objected to parts of the summing up, the court said-to the plaintiff’s counsel: “I think you had'better direct the attention of the jury to the facts in the case,” and the defendant’s counsel did not thereafter except. At another place, when the defendant’s counsel objected to the statement as to the, number of passengers in the car whose names and addresses the conductor *467took, and also objected that there was no evidence to warrant the statement, the court said: “ I do not think there is any evidence of the number. There is evidence that it was the conductor’s duty to take the names of witnesses.” And the defendant’s counsel did not thereafter except.
When plaintiff’s counsel stated that the defendant’s counsel required the court stenographer, at public expense, to take down the plaintiff’s summing up, objection was made, exception taken, and the court said: “ It is the stenographer’s duty to do that, if he is requested to do it, and no criticism can be made because of its being done.” Defendant’s counsel made no exception thereto. The same thing was true when the plaintiff’s counsel made some further objection and exception to a reference to the stenographer, and this again was corrected by the court in saying: “ That is not proper. It does not cost the county anything.”
At the close of the charge the plaintiff’s counsel, possibly because he realized that he had transcended his privilege, requested the court to charge “ that in case either counsel in summing up stated facts that were not proven on the trial, or in case either counsel gave a recollection of the facts which disagree with the recollection of the jury, the jury must disregard those statements and take their own recollection of the facts. The Court: Yes, I charge that. The duty of counsel is to aid the jury, but if your recollection distinctly agrees* with them, of course that must prevail..”
In view of the fact that no exception was taken by defendant’s counsel after the correcting instruction of the court during the summing up, or after the court had charged as requested, I cannot come to any conclusion except that the defendant’s counsel was satisfied by the action of the court, and . that the court properly instructed and charged; and that the error of plaintiff’s counsel, if any, was neutralized and corrected by such rulings. There is no legal error which requires reversal.
In this view I am confirmed by the opinion of the learned justice, rendered upon the reserve motion for nonsuit, wherein he said: “I think it would be an abuse of judicial discretion to grant a new trial because of the remarks of the plaintiff’s counsel in his summing *468up; in-his zeal he went to some extent outside of- the record, but -1 am satisfied that this was done inadvertently, and the court having promptly corrected his statements, I am entirely satisfied that no prejudicial effect was exerted upon the jury.”
Judgment and order reversed and new trial granted, costs to abide the event.
Sic.