Opinion
June, 1906.
William E. Weaver, for appellant.
Wasserman Jacobus, 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 objection 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.R. Co., 94 A.D. 24, 30; Cosselmon v. Dunfee, 172 N.Y. 507; Kuperschmidt v. Met. St. R. Co., 47 Misc. 352.
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Present: GILDERSLEEVE, LEVENTRITT and McCALL, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.