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Cleveland v. New York & Queens County Railway Co.

108 N.Y.S. 362 Court N.Y. App. Div. Decision date 1908-01-17 English

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p. 362
CLEVELAND v. NEW YORK & Q. C. RY. CO.
(Supreme Court, Appellate Division, Second Department
January 17, 1908.)

Headnote

Trial—Improper Remarks oe Counsel.
In an action for injuries to personal property through a collision between defendant’s car and a truck driven by plaintiff’s servant, a statement of plaintiff’s counsel, while the driver was being examined as a witness, that the witness had settled his case for injuries, made for the purpose of informing the jury that defendant had settled with the witness, was reversible error.
Appeal from Queens County Court.
Action by Annie Cleveland, doing business under the name of Cleveland & Son, against the New York & Queens County Railway Comaany. From the judgment, and from an order denying its motion for a new trial, defendant appeals. Reversed.
Argued' before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
Van Vechten Veeder and Nathaniel S. Corwin, for appellant.
Louis Frankel, for respondent. -

This action is brought to recover damages for injuries to property resulting from a collision between one of the defendant’s cars and a loaded truck driven by the plaintiff’s servant. The driver was called as a witness for the plaintiff, and during his examination the following colloquy took place:

p. 363
“Q. How" far was the car bam. from where the accident happened? A. About a mile; maybe a little more.
“Plaintiff’s Counsel: He settled his case.
“Defendant’s Counsel: I object to that as improper, that remark.
“The Court: I think it is improper.
“Defendant’s Counsel: And I" ask your honor to tell this jury that they must disregard that remark.
“Plaintiff’s Counsel: That remark was not made to the jury.
“Defendant’s Counsel: I move for the withdrawal of a juror.
“The Court: Motion denied.
“Defendant’s-Counsel: Exception.
“The Court: Something has been said about this man being injured, and his counsel says that his claim was settled. That has nothing to do with this case, and should not have been mentioned.
“Plaintiff’s Counsel: I am not his counsel, and never was his counsel.
“The Court: Well, the lawyer who is trying the case said so, and he should not have said so, and you must keep it out ,of your mind that he did say so, or that that fact happened.” • ' ’

We think it evident that the plaintiff’s attorney deliberately made .the statement for the purpose of informing the jury that the defendant had settled with the driver. Such conduct must not be suffered to -pass unnoticed. The judgment is reversed.

' Judgment and order of the County Court of Queens county reversed, and new trial ordered; costs to abide the event.