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Clifford v. Mitchell Motor Co.

157 N.Y.S. 8 Court Argued January term, 1916, before GUY, BIJUR, and GAVEgan, jj. Decision date 1916-01-14 English

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p. 8
CLIFFORD v. MITCHELL MOTOR CO. OF NEW YORK.
(Supreme Court, Appellate Term, First Department.
January 14, 1916.)

Headnote

Appeal and Error @=>207—Presentation of Grounds of Review in Court Below—Necessity.
Where, during the summing up of plaintiff’s counsel, the trial judge absented himself from the room, and counsel indulged in improper and highly prejudicial argument, the fact that defendant did not request the judge, when he returned to the bench, to cure the error by appropriate instructions, does not preclude him from thereafter attacking the verdict.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1500; Dec. Dig. @=>207.1
<@=xFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Special Term.
- Action by Kathleen Clifford against the Mitchell Motor Company of . New York. There was a judgment for plaintiff, and from an order denying a motion to set aside the verdict and for a new trial, defendant appeals. Order reversed, and new trial granted.
Argued January term, 1916, before GUY, BIJUR, and GAVEgan, jj.
Herman Goldman, of New York City (Irving Zion, of New York City, of counsel), for appellant.
Elias Rosenthal, of New York City, for respondent.

In this case the affidavit of defendant’s attorney recites that during the summing up, and in the absence of the trial judge, plaintiff’s attorney referred to defendant and its agents as robbers, and said they had stolen the money paid by the defendant for the automobile and took advantage of her because she was a woman, etc.; that defendant appellant’s counsel rose from his chair to protest, but realized, and so said to his associate, that there was no one to whom to protest. 'It is true he did not ask the judge, when he returned to the bench, to cure this trouble by instructing tire jury appropriately; but we do. not think that that precludes him from raising the objection now, as we have explained in Carroll v. Blum, 157 N. Y. Supp. 7 , decided at this term.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. Judgment vacated, and a new trial ordered.