Ercolino v. New York Rapid Transit Corp.

Appellate Division of the Supreme Court of New York

Ercolino v. New York Rapid Transit Corp.

255 A.D. 877, 7 N.Y.S.2d 815, 1938 N.Y. App. Div. LEXIS 5737

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 28, 1938

StatusPublished

This text of 255 A.D. 877 (Ercolino v. New York Rapid Transit Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ercolino v. New York Rapid Transit Corp., 255 A.D. 877, 7 N.Y.S.2d 815, 1938 N.Y. App. Div. LEXIS 5737 (N.Y. Ct. App. 1938).

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Opinion

Action brought by the plaintiff wife, here respondent, to recover damages for personal injuries, and by the plaintiff husband, also here respondent, to recover damages for loss of his wife’s services. The injuries were sustained through the alleged negligence of the defendant, a common carrier, here appellant, because of the alleged overcrowding of its station platform. The issues were tried. A verdict was rendered by the jury, awarding damages to each plaintiff. From the judgment entered thereon defendant appeals. Judgment reversed on the facts and a new trial granted, with costs to the appellant to abide the event. • Although the verdict is not vulnerable in so far as it finds liability to each plaintiff on the part of the defendant carrier, the summation of plaintiffs’ counsel was prejudicial to the defendant in a substantial way. It [878]*878exceeded the bounds of fair argument and in it counsel played to the sympathy and prejudices of the jury. The interests of justice require that a new trial should be had. (New York Central R. R. Co. v. Johnson, 279 U. S. 310, 318; Philpot v. Fifth Avenue Coach Co., 142 App. Div. 811, 818, 822, 823; Cherry Creek Nat. Bank v. Fidelity & Casualty Co., 207 id. 787, 790, 791; Crocker v. Erie Railroad Co., 221 id. 44, 48; Havern v. Hoffman, 252 id. 486, 487.) Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.

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Action brought by the plaintiff wife, here respondent, to recover damages for personal injuries, and by the plaintiff husband, also here respondent, to recover damages for loss of his wife’s services. The injuries were sustained through the alleged negligence of the defendant, a common carrier, here appellant, because of the alleged overcrowding of its station platform. The issues were tried. A verdict was rendered by the jury, awarding damages to each plaintiff. From the judgment entered thereon defendant appeals. Judgment reversed on the facts and a new trial granted, with costs to the appellant to abide the event. • Although the verdict is not vulnerable in so far as it finds liability to each plaintiff on the part of the defendant carrier, the summation of plaintiffs’ counsel was prejudicial to the defendant in a substantial way. It [878]*878exceeded the bounds of fair argument and in it counsel played to the sympathy and prejudices of the jury. The interests of justice require that a new trial should be had. (New York Central R. R. Co. v. Johnson, 279 U. S. 310, 318; Philpot v. Fifth Avenue Coach Co., 142 App. Div. 811, 818, 822, 823; Cherry Creek Nat. Bank v. Fidelity & Casualty Co., 207 id. 787, 790, 791; Crocker v. Erie Railroad Co., 221 id. 44, 48; Havern v. Hoffman, 252 id. 486, 487.) Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.

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Bluebook (online)

255 A.D. 877, 7 N.Y.S.2d 815, 1938 N.Y. App. Div. LEXIS 5737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ercolino-v-new-york-rapid-transit-corp-nyappdiv-1938.

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