Stein v. Brooklyn, Queens County & Suburban Railroad

62 Misc. 309, 114 N.Y.S. 791

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1909
• Status: Published

Opinion

Giegerich, J.

The action is to recover damages for personal injuries sustained by the plaintiff while attempting to board a street car of the defendant company and alleged to have been caused by the negligence of the defendant. The answer contains a general denial and also sets up the defense of contributory negligence.

The principal question in dispute was whether the car was moving or standing still when the plaintiff attempted to board it.

In summing up to the jury, the plaintiff’s counsel said, speaking of an employee of the defendant: “ He went to Stein’s house and tried to settle this case without my knowledge.”

Defendant’s counsel excepted to the remark and moved for a mistrial which was denied and an exception duly noted.

There was nothing in the evidence to justify the remark, and it was undoubtedly a wilful attempt to influence the jury improperly.

The record also shows that it was not the only misstatement of the evidence of which plaintiff’s counsel was guilty. As the defendant’s theory was that it was under no' liability whatever, it is obvious that the statement quoted was calculated to prejudice the defense. Verdicts obtained in this fashion will not be allowed to stand (Scott v. Barker, 129 App. Div. 241; Strickland v. N. Y . C. & H. R. R. R. Co., 88 id. 371); and it is no sufficient answer to this objection to show that the jury were instructed to disregard the improper statements of counsel. Loughlin v. Brassil, 187 N. Y. 128, 135; Manigold v. Black River Traction Co., 81 App. Div. 381, 384.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.

Gildersleeve and Seabury, JJ., concur.

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