¶1As we have held upon the main appeal that the plaintiff took a. sufficient exception to the dismissal of the complaint to ivarrant the hearing and decision of the motion for a new trial upon the trial justice’s minutes, we think the order appealed from should be modified so as to permit the fact that such exception was taken to appear therein. The learned counsel for the plaintiff, in his application for a resettlement, asked more than he was entitled to, and specified grounds which were not taken. That, however, does not deprive him. of a resettlement as to the ground which actually was taken. . ■
¶2: The order denying the motion for a resettlement should, therefore, be reversed and an order made resettling the original order so-as to read that the motion- therein referred was made upon the *597plaintiffs exception to the dismissal of the complaint, without costs of this appeal.
¶3Rumsey, Patterson and O’Brien, JJ., concurred; Van Brunt, P. J., dissented.