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Fishblatt v. New York City Railway Co.

99 N.Y.S. 836 Court N.Y. App. Term Decision date 1906-06-28 English

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p. 836
FISHBLATT v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Term.
June 28, 1906.)

Headnote

Tbial—Misconduct of Counsel—Action of Coubt.
Where plaintiff’s counsel In addressing the jury persisted in making charges and accusations not supported by the evidence, and tending to prejudice the jury against defendant, a mere instruction that the jury should base their verdict on the evidence did not destroy the effect of counsel’s misconduct, but it was cause for reversal.
[Ed. Note.—For cases in point, see vol. 46, "Cent. Dig. Trial, §§ 285, 316.]
Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
p. 837
Action by Annie Fishblatt against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Argued before GIEDERSLEEVE, LEVENTRITT, and McCALL, JJ.
William E. Weaver, for appellant.
Wasserman & Jacoby, for respondent.

In the course of his summing up plaintiff’s counsel repeatedly indulged in remarks which clearly tended to arouse the prejudice of the jury against the defendant. Notwithstanding the objction of defendant’s counsel and the caution of the court, plaintiff’s counsel persisted in charges and accusations in nowise supported by- the evidence. The sole purpose of the impassioned appeal to the jury was to create a bias, and we cannot say that that purpose was not accomplished. Upon three separate occasions the defendant’s counsel moved that a mistrial be declared. , In each instance the motion was denied, and an exception taken.

The motion should have been granted. The insinuative effect on the jury was not removed by the instructions of the justice. The improper conduct of the plaintiff’s counsel was so pronounced and persistent that the mild observation of the judge to the jury that they should base their verdict on the evidence alone did not eliminate the false impressions which they must have gained. Benoit v. N. Y. C. & H. R. R. Co., 94 App. Div. 24 , 30, 87 N. Y. Supp. 951 ; Cosselmon v. Dunfee, 172 N. Y. 507 , 65 N. E. 494 ; Kuperschmidt v. Met. St. Ry. Co., 47 Misc. Rep. 352 , 94 N. Y. Supp. 17 .

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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