Mullarkey v. Interurban Street Railway Co. — 96 N.Y.S. 115

Majority

p. 115

(48 Misc. Rep. 638)

MULLARKEY v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term.

November 29, 1905.)

Headnote

Appeal—Review—Harmless Error—Remarks of Counsel. '

There being doubt as to the sufficiency of the evidence, judgment for plaintiff will be reversed for statements of his counsel to the jury, unsupported by the evidence, and calculated, as well as designed, to prejudice them against defendant.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4135.]

Appeal from City Court of New York.

Action by James Mullarkey against the Interurban Street Railway Company. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed.

Argued before SCOTT, P. J., and GIUDERSLEEVE and Mac-LEAN, JJ.

Bayard H. Ames and E. Merriam Bagg, for appellant.

Otto Horwitz, for respondent.

This case has been twice tried; a former judgment in behalf of plaintiff having been reversed ( 88 N. Y. Supp. 699 ) on the ground that the verdict was against the evidence. The evidence to sustain the verdict in the present case is by no means satisfactory; but, after two juries have arrived at the same conclusion as to the facts, we should be disposed to accept the second verdict, were it not for the persistence of plaintiff’s counsel in making statements to the jury unsupported by any evidence in the case, and calculated, as well as designed, to prejudice the' jury against the defendant. In a case where there is so much doubt, as in the present, whether the evidence is sufficient to sustain the verdict, we may not say that these irrelevant and improper statements did not turn the scale in plaintiff’s favor.

Judgment reversed, and new trial granted, with costs to appellant to abide the event.