Opinion
November (Filed December, 1923).
Horace G. Marks, for appellant.
Isaac Schmal, for respondents.
Appeal by defendant from judgment in favor of plaintiffs entered upon the verdict of a jury in an action for damages for breach of contract.
During the summing up plaintiffs' counsel stated: "My client doesn't care for the $270. We will take it and give it to any charitable institution," which statement was objected to by defendant's counsel as made for the purpose of biasing the jury, and the trial judge instructed the jury to disregard the remark.
Although no motion was made to withdraw a juror and declare a mistrial, the statement of counsel was so manifestly improper and, even after being stricken out by the trial judge, so calculated to influence the jury in rendering a verdict that a new trial should be ordered.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
BIJUR and DELEHANTY, JJ., concur.
Judgment reversed.