Annie Cleveland Doing Business under the Name of Cleveland & Son, Respondent, v. New York and Queens County Railway Company, Appellant

Annie Cleveland Doing Business under the Name of Cleveland & Son, Respondent, v. New York and Queens County Railway Company, Appellant. Second Department, January 17, 1908. Trial—potion for negligence — improper remarks by counsel. Action to recover damages for personal injuries. Judgment for plaintiff reversed because of statements of counsel informing the jury that the'defendant had settled, with: plaintiff’s witness, who. was injured in the same accident. Appeal by thp defendant, the Mew Ttirk and Queens County Bailway Company, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the l‘9tli'day of April, Í907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 6th 'day of May, 1907} denying the defendant's-motion for a new trial made upon the minutes. Van Vechten Veeder and Nathaniel S. Corwin, for the appellant. Louis Frankel [Job M. Hedges with him on the brief], for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This action is brought to recover damages for injuries to property resulting from a collision between one of the defendant’s cars-and a loaded truck driven by the plaintiff’s servant. The drivér was called as a witness for the plaintiff, and during his examination the following colloquy took place: “ Q. How far was the car barn from where the accident happened ? A. About a mile. Maybe a little more. [Plaintiff’s Counsel] : He settled his case. [Defendant’s Counsel] : I object to that as improper, that remark. Tire Court: I think it is improper. [Defendant’s Counsel] : And I ask your Honor to tell this jury that they must disregard that remark. [Plaintiff’s Counsel] : That remark was not made to the jury. [Defendant’s Counsel] : I move for the withdrawal of a juror. The Court: Motion denied [Defendant’s Counsel] : Exception. The Court: Something has been said about this man being injured, and his counsel says that his claim was settled. That has nothing to do with this-case,, and should not have been mentioned. [Plaintiff’s Counsel] : I am not bis counsel and never was his counsel. The Court: Well, the lawyer who is trying the case said so and he should not have said so, and you must keep it out of your mind that he did say so, or that that fact .happened.’’ We think it evident that the plaintiff’s attorney deliberately made the statement for the purpose of informing the jury that the defendant had settled with the driver. Such conduct must not be suffered to pass unnoticed. The judgment is reversed. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Judgment and order of the County - Court .of Queens county reversed and new trial ordered, costs to abide the event.