Cunningham v. Heidelberger

48 Misc. 614

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 1, 1905
• Status: Published

Opinion

Bischoff, J.

The question asked by plaintiff’s counsel, in the course of his examination of jurors: “ Do you know Mr. Frank Y. Johnson, attorney for the Fidelity Insurance Company in this case,” was most prejudicial in character; and, the objectionable matter having been introduced in such a way as to negative any legitimate purpose, a new trial should be had in the interests of substantial justice. Manigold v. Black River T. Co., 81 App. Div. 381; Cosselmon v. Dunfee, 172 N. Y. 507; Grant v. National R. S. Co., 100 App. Div. 234, 237; Lipschutz v. Ross, 84 N. Y. Supp. 632. The verdict was not necessarily excessive, if the jury believed that the injury was permanent; but, in view of the amount awarded and of the nature of the proof to support it, we cannot say that the result was probably reached without regard, to the sinister influence of counsel’s suggestion.

Since the necessity for this appeal has arisen solely through the reprehensible practice of plaintiff’s counsel, we impose costs, absolutely, so far as accrued.

Scott and Fitzgerald, JJ., concur.

Judgment reversed, with costs, and new trial ordered.