Weisman v. Baer & Hoffman, Inc. — 121 Misc. 790

Majority

p. 790

Abraham Weisman, Max Weisman and Charles Weisman, Copartners, Doing Business under the Firm Name and Style of Three Star Dress Company, Plaintiffs, Respondents, v. Baer & Hoffman, Inc., Defendant, Appellant.

Supreme Court, Appellate Term, First Department,

November

(Filed December, 1923).

Headnote

Trial — summing up — improper remarks of counsel before jury — judgment reversed.

The remark “ My client doesn’t care for the $270. We will take it and give it to any charitable institution,” made by counsel in summing up to the jury in an action to recover damages for breach of contract, calls for the reversal of a judgment in favor of plaintiff and for a new trial even though the jury were instructed to disregard the manifestly improper remark.

Appeal by defendant from judgment of the Municipal Court, borough of Manhattan, fourth district, in favor of plaintiff.

Horace G. Marks, for appellant.

Isaac Schmal, for respondents.

Appeal by defendant from judgment in favor of plaintiffs entered upon the verdict of a jury in an action for damages for breach of contract.

■ During the summing up plaintiffs’ counsel stated: “ My client doesn’t care for the $270. We will take it and give it to any charitable institution,” which statement was objected to by defendant’s counsel as made for the purpose of biasing the jury, and the trial judge instructed the jury to disregard the remark.

, Although no motion was made to withdraw a juror and declare a mistrial, the statement of counsel was so manifestly improper and, even after being stricken out by the trial judge, so calculated to influence the jury in rendering a verdict that a new trial should be ordered.

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

Bijur and Delehanty, JJ., concur.

Judgment reversed.