Opinion
May 22, 1942.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and Harris, JJ.
Judgment and order reversed on the facts as a matter of discretion and a new trial granted, with costs to the appellant to abide the event. Memorandum: On the facts, the question of liability was a close one. So close, indeed, that we would not be justified in disturbing the verdict of no cause for action were we convinced that the plaintiff had had a fair trial. The tactics indulged in by the defendants' trial counsel, particularly in his cross-examination of the plaintiff, convince us that the plaintiff did not have a fair trial. The questions propounded to the plaintiff on cross-examination relative to her residence on certain streets and to visitations the police had made to her home while she was there living were not propounded for the purpose of testing her credibility but for the purpose of degrading her and of bringing her into disrepute with the jury. The purpose being evident, the court should have sustained the objections offered to such questions. Attacks of this character cannot be made upon one's private life under the guise of cross-examination. ( Mowbray v. Gould, 63 App. Div. 158, 164.) Doubtless this veiled attack on the plaintiff's integrity served to prejudice the jury against her. We cannot say that it did not influence the jury in their verdict. Under the circumstances, the interests of justice require that a new trial be had. In reaching this conclusion, we are not to be understood as placing our approval on some of the tactics employed by the plaintiff's trial counsel on the trial under review. All concur, except Crosby, P.J., and Taylor, J., who dissent and vote for affirmance. (The judgment is for defendants in an automobile negligence action. The order denies a motion for a new trial.)