Lazarus v. New York City Railway Co.

46 Misc. 473, 92 N.Y.S. 246

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1905
• Status: Published

Opinions

McCall, J.

The court asked the attending physician in this case the following question: “ From your examination of the plaintiff and from your knowledge of the subject can you state with any degree of reasonable certainty what this nervousness resulted from? ” To which the witness replied, “Yes, sir.” When the court'asked him to “Kindly state” instead of answering the question as he should have, he being supposedly able to, as indicated in his reply, to the court’s first query, the witness replied “ Momentum and shock is possible to bring on this nervousness in a man.” Whereupon the defendant’s attorney moved to strike the answer out and the court denying his motion he took an exception thereto. The answer given falls under the ban of a long line of decisions, and it was error that calls for a reversal of this judgment not to have granted that motion, m,ore particularly is this so when we consider that the condition about which the doctor was then testifying was one of the most important features in the litigation.

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