Cleveland v. New York & Queens County Railway Co.

123 A.D. 732, 108 N.Y.S. 362, 1908 N.Y. App. Div. LEXIS 176

Opinion

Per Curiam:

This action is brought to recover damages for injuries to property resulting from a collision between one of the defendant’s cars-and a loaded truck driven by the plaintiff’s servant. The drivér was called as a witness for the plaintiff, and during his examination the following colloquy took place: “ Q. How far was the car barn from where the accident happened ? A. About a mile. Maybe a little more. [Plaintiff’s Counsel] : He settled his case. [Defendant’s Counsel] : I object to that as improper, that remark. Tire Court: I think it is improper. [Defendant’s Counsel] : And I ask your Honor to tell this jury that they must disregard that remark. [Plaintiff’s Counsel] : That remark was not made to the jury. [Defendant’s Counsel] : I move for the withdrawal of a juror. The Court: Motion denied [Defendant’s Counsel] : Exception. The Court: Something has been said about this man being injured, and his counsel says that his claim was settled. That has nothing to do with this-case,, and should not have been mentioned. [Plaintiff’s Counsel] : I am not bis counsel and never was his counsel. The Court: Well, the lawyer who is trying the case said so and he should not have said so, and you must keep it out of your mind that he did say so, or that that fact .happened.’’

We think it evident that the plaintiff’s attorney deliberately made the statement for the purpose of informing the jury that the defendant had settled with the driver. Such conduct must not be suffered to pass unnoticed. The judgment is reversed.

Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment and order of the County - Court .of Queens county reversed and new trial ordered, costs to abide the event.