The record shows a violation of section 295 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), which directs that the stenographer take full notes of the proceedings in each cause tried. In jury trials the stenographer must take each and every remark or comment by the judge during the trial, when requested to do so by either party, together with each and every exception taken to any such ruling and decision, remark or comment by or on behalf of any party to the action. Although frequently such passing remarks may not be of moment, the trial counsel has a statutory right on request to have them taken down. At a later stage in the trial a motion was made to withdraw a juror on account of earlier remarks as to which the recollection of court differed from that of counsel. This leaves us without a'correct record of the original incident. Hence we cannot disregard it, in view of its possible effect on the jury.
The judgment and order are, therefore, reversed, and a new trial granted, costs to abide the event.
Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred; Carr, J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.