Opinion
March 5, 1941.
Present — Crosby, P.J., Taylor, Dowling, Harris and McCurn, JJ.
Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Memorandum: The evidence presents close questions both as to the defendants' negligence and as to the plaintiff's contributory negligence. The answer of the witness Beardsley to the effect that he made a written statement "the morning after the insurance representative came and questioned me regarding the accident" clearly suggests that the defendant was insured against liability. The answer was stricken out. The court in its charge referred to the incident and instructed the jury as to their duty to disregard it. However, we are unable to find from the record that the suggestion of insurance did not influence the jury in finding a verdict for the plaintiff. (See Simpson v. Foundation Co., 201 N.Y. 479; Gebo v. Findlay, 257 App. Div. 66. ) All concur. (The judgment is for plaintiff in an automobile negligence action. The order denies a motion for a new trial.)