PECKHAM, J.

The affidavits on the part of the plaintiff are plain and distinct upon the point that the fifth request to charge was marked as "refused," by the learned trial judge, and that after he handed the requests back to counsel they were read aloud by him, and the fifth request was refused in open court, and an exception to such refusal then duly and openly taken. The affidavit of the counsel for defendants does not meet this distinct allegation, but says that every request of plaintiff to charge that any material and appreciable diminishing of the volume of water in the stream by plaintiff's property the defendants were liable for, was charged by the court. That is not a denial of the fact that after the charge was concluded the plaintiff's counsel again read aloud in open court the fifth request which was marked "refused" by the learned judge, and that he again refused to charge it. This was in the presence of the jury, and the exception was then taken to such refusal. From the other requests to charge, some of which the learned judge marked as "charged," and which he did charge, it may be inferred that the fifth request is claimed to have been already substantially contained in some of such prior requests which had been charged, and that hence an inadvertent marking of the fifth request as "refused" was simply a mistaken marking thereof.

Possibly that may turn out to be the truth. The counsel for the plaintiff, however, contends that there is a marked, substantial and material difference between the propositions that were charged and the fifth proposition, which was thus marked as "refused," and such refusal subsequently repeated.

We do not think we ought to decide such question on a motion of this kind, unless the contention is plainly so frivolous as not to be capable of the least discussion. If the propositions which were charged (although differently worded) are, in substance and effect, identical with such fifth request, then the refusal to repeat them by charging the fifth request was proper, and an exception to such refusal would be of no avail. If, however, they were not thus identical, the case, as settled, deprives the plaintiff of an exception duly taken to a refusal actually made, and thus deprives it of a chance to review such ruling.

Upon the papers before us there is absolutely no conflict as to what actually took place upon the trial with reference to this request and the exception taken upon the refusal to charge it. The statement of the learned judge, as mentioned in the affidavit of the clerk of counsel for plaintiff, that he did not refuse to charge as requested, evidently refers to the previous requests which the judge had charged, and which he believed to be substantially identical with the fifth request; but we do not understand him, so far as we can gather from this affidavit, to impugn the correctness of the history of the transaction as given. And, as already remarked, it may well be that the learned judge is entirely right in his view as to the scope and meaning of such fifth request, and that he had already substantially charged it. It seems to us clear that, in such case, a party is entitled, as of strict right, to have the case show the actual facts as they really happened on the trial, so that an appellate court can decide the case upon a record which is absolutely correct.

We cannot, of course, dictate to a trial court how a case shall be settled, and we do not presume to do any such thing in this case. We can only say that upon the facts appearing as they do here, the motion for the resettlement of the case ought to be granted, to the end that the question may again be presented to the learned trial judge so that he may have an opportunity to resettle it in such manner as shall be consistent with the facts; an opportunity which we are sure none would feel greater pleasure in embracing than the distinguished and learned judge who presided on the trial of this case.

We also think the order is appealable. There being no conflict as to the facts, the plaintiff was entitled to have the motion for a resettlement granted, and the refusal deprived it of a substantial and valuable right, and the order which denied it is reviewable here.

The orders of the Special and General Terms should, therefore, be reversed, with costs in this and the Supreme Court, and the motion for a resettlement granted.

All concur except RUGER, Ch. J., and DANFORTH, J., dissenting.

Orders reversed.