Chernick v. Independent American Ice Cream Co.

66 Misc. 177, 121 N.Y.S. 352

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1910
• Status: Published

Opinion

Seabury, J.

This action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. The judgment recovered must be reversed because evidence prejudicial to the defendant was erroneously received. The president of the defendant on cross-examination was asked the following question: “ When you got these papers, what did you do with them, the summons and ■ complaint ? ” The counsel for the defendant promptly objected; but, in the absence of a ruling by the trial court, the witness replied: “I sent it to the company because I am insured for that.” The question was improper, and the court should have promptly sustained the objection made to it. The action of the court in striking the answer from the record did not cure its previous error in permitting it to be received. The court could not erase this evidence from the minds of the jury by striking it from the record, and the motion for the withdrawal of a juror should have been granted.

I The judgment is reversed and a new trial ordered, with ■ costs to the appellant to abide the event.

Lehman and Bijur, JJ., concur.

i Judgment reversed and new trial ordered, with costs to ' appellant to abide event.