The part of the charge of the court to which the defendant’s counsel took exception was incorrect. The exception being good the appellant is entitled to a reversal of the judgment. Counsel repeated the erroneous part of the charge in the language of the court, and specifically noted his exception to it. This was all that he was required to do to be able to avail himself of his exception. It was not his fault that the learned trial justice misapprehended the point of the objection and interrupted him in his effort to state more clearly the precise fault objected to. I do not think that counsel was required to state the proper complementary instruction. He might well have done so, if the court had permitted it; but he was not required to do it in order to take advantage of the exception he had taken. The dictum contained in Lindheim v. Duys, 11 Misc. Rep. 16, that counsel must request the “ proper complementary instructions ” is contrary to the rule as declared in Goldman v. Abrahams, 9 Daly, 223. In Brickwood’s uSackett on Instruction to Jurors, § 300; it is stated that “ The party does not waive exceptions made to erroneous charges by reason of the fact that no request is made by him for a proper one.” I. think that this is a statement of the correct rule.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment reversed and new trial ordered, with costs tc appellant to abide event.