O'Donnell v. Johnson

218 A.D. 857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1926
• Status: Published

Opinion

Judgment affirmed, with costs. Kelly, P. J., with whom Manning, J., concurs, votes for affirmance upon the ground that there was nothing about the photograph introduced in evidence (and which, although not printed in the record, was submitted to the court on the argument by consent of both parties) to indicate that it was introduced for any ulterior purpose, or that it was calculated to improperly influence the jury. The photograph referred to by the Court of Appeals in Smith v. Lehigh Valley Railroad Co. (177 N. Y. 379) is not before us, and we have no means of ascertaining its objectionable characteristics which led the Court of Appeals to sustain the objection to its reception in evidence; Lazansky, J., concurs, but would be constrained to vote for reversal upon authority of Smith v. Lehigh Valley Railroad Co. (supra) were it not for a grave doubt that the court in that case would have reversed because of the admission of decedent’s photograph in evidence if other error, serious in its nature, had not been involved; Jaycox, J., with whom Kapper, J., concurs, dissents, and votes to reverse upon the law, and for a new trial, upon the ground that it was error to admit the photograph over defendant’s objection and exception, on authority of Smith v. Lehigh Valley Railroad Co. (177 N. Y. 384), and upon the further ground that, in the condition of the proof, there was no purpose in introducing the photograph except to inject a personal element into the case.