Opinion
June, 1933.
Judgment reversed on the facts and a new trial granted, costs to appellant to abide the event, unless plaintiff within ten days from service of a copy of the order herein stipulate to reduce the verdict to the sum of $5,000; in which event the judgment as so modified is affirmed, without costs. Admission of evidence of defendant's prior conviction of a minor offense was erroneous. ( Gilardi v. Greenberg, 213 App. Div. 828; Tryon v. Willbank, 234 id. 335, 340.) We are of opinion, however, that upon the issue of negligence the error was harmless, in view of the preponderance of evidence in favor of the plaintiff; but we are not satisfied that the error, in conjunction with the improper cross-examination of the defendant by trial counsel ( Graham v. Graham, 142 App. Div. 131), after the defendant had conceded that the death of the intestate was caused by the accident, did not have the effect of exciting the prejudice of the jury and enhancing the damages, which at best, in view of the relation of the deceased and the party to be compensated for pecuniary loss, were to a large extent uncertain and speculative. Young, Hagarty and Davis, JJ., concur; Carswell, J., concurs in result; Lazansky, P.J., concurs for reversal unless there be a stipulation to reduce the amount of the verdict, but dissents from the fixation of the amount at $5,000, being of opinion that the verdict should be reduced to $3,000.