Chernick v. Independent American Ice Cream Co.

Majority

p. 177

Philip Chernick, Respondent, v. The Independent American Ice Cream Company, Appellant.

(Supreme Court, Appellate Term,

February, 1910.)

Headnote

Negligence — Actions — Evidence — Admissibility—Insurance of plaintiff against accidents.

Saving questions for review — Waiver of objections and exceptions taken — In general.

l'n an action against a corporation to recover damages for personal injuries arising from negligence, the admission of the statement of the defendant’s president that he sent the summons and complaint to the insurance company as he was insured for that in response to plaintiff’s question on cross-examination calling for

p. 178

such statement, to which. defendant’s counsel duly objected, was error for which a judgment for plaintiff should be reversed.

Semble, such objection was not waived by the answer of defendant’s president without waiting for a ruling of the court upon the objection made by defendant’s counsel.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, for $436.50, entered in favor of the plaintiff upon the verdict of a jury, and also from an order denying a motion to set aside the verdict and for a new trial..

Raymond David Fuller, for appellant.

Charles S. Rosenthal, for respondent.

This action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. The judgment recovered must be reversed because evidence prejudicial to the defendant was erroneously received. The president of the defendant on cross-examination was asked the following question: “ When you got these papers, what did you do with them, the summons and ■ complaint ? ” The counsel for the defendant promptly objected; but, in the absence of a ruling by the trial court, the witness replied: “I sent it to the company because I am insured for that.” The question was improper, and the court should have promptly sustained the objection made to it. The action of the court in striking the answer from the record did not cure its previous error in permitting it to be received. The court could not erase this evidence from the minds of the jury by striking it from the record, and the motion for the withdrawal of a juror should have been granted.

I The judgment is reversed and a new trial ordered, with ■ costs to the appellant to abide the event.

Lehman and Bijur, JJ., concur.

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