p. 552NELSON v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO.(Supreme Court, Trial Term, New York County.Headnote
New Trial—Misconduct of Counsel.Where, in an action against a street railway company for injuries to a passenger, plaintiff’s counsel in his argument stated that “a man got ■ $1,750 here yesterday for a shoulder,” and defendant’s counsel excepted, a verdict for plaintiff will be set aside, though his counsel stated that he was willing the jury should be instructed to disregard the remark.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, New Trial, §§• 43, 44; vol. 46, Trial, §§ 275-309.]
Action by Lillie Nelson against the Forty-Second Street, Manhattan-ville & St. Nicholas Avenue Railway Company. Verdict for plaintiff. Motion for new trial granted.
George B. Class, for plaintiff.
James L. Quackenbush, for defendant.
In a sudden start case, wherein the testimony of the plaintiff, corroborated 'by one witness, was contradicted by that of three seemingly disinterested persons, besides the motorman, conductor, and inspector, the plaintiff’s counsel, in summing up, said: “A man got $1,750 here yesterday for a shoulder.” Before he could go further the
p. 553defendant’s counsel interposed: "I ask for the withdrawal of a juror on that.” To which plaintiff’s counsel returned: “The sentence was not completed, and I am entirely willing that the jury may be instructed to disregard it in the strongest terms.” Thereupon the court ruled: “The motion to withdraw a juror is denied. You may proceed.” Counsel for the defendant took an exception. Two other applications for the withdrawal of a juror were made for other and lesser extravasations of zeal for the plaintiff’s sake.
No allusion was made in the charge to these improprieties, the court, from observation had and inquiry made upon both sides of the bar, having no faith in retraction by others than those whose words should be withdrawn, and little trust in the efficacy of correction of statements by counsel or judge construable by.jurymen into furtherance of the wejudice commonly obtaining in favor of the person—this time a woan—bringing the action and the frequent feeling that one who has en hurt should get something from somebody. Effort would have en futile to eliminate by disparaging instruction the effect of the sugstion, apparently well driven home, that it but remained for the jury assess the damages, of which one item in the tariff was $1,750 for aoulder. The motion to set aside the verdict and accord a new trial 'ranted.
lotion granted.