104 N.Y.S. 421 | N.Y. App. Div. | 1907
The appellant contends that the judgment is contrary to evidence. It is unnecessary'to consider that question! Where it is not clear that the evidence • fully sustains the verdict, the other point presented by theappellant has a controlling force. The judgment should be reversed on account of improper remarks made by . the counsel'for the respondent in summing up to the jury, which show clearly that he was seeking a verdict not upon the evidence ■but upon account of the'prejudices of the jury. It is fair to consider that his remarks, in a close case like this, had the. effect upon'' the minds of the jurors which he clearly intended they should have. (Hoyt v. Davis Manufacturing Co., 112 App. Div. 755; Loughlin v. Brassil, 187 N. Y. 128.) The several remarks made show that they were not inadvertently made, but that counsel persisted in making, improper remarks notwithstanding the reproval of- the
The judgment and, orders should, .therefore,- be reversed and a new trial granted, with costs to the appellant to abide the event..
All concurred.
Judgment and orders reversed and new trial granted, with costs to- appellant to abide event. . *