240 A.D. 755 | N.Y. App. Div. | 1933
Judgment and order reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event on the ground that prejudicial error was committed in the reception in evidence, over defendant’s objection and exception, of the testimony of the plaintiff as to what he was told by Dr. Fitch in respect to the necessity for an operation and the description of the operation. This evidence was later struck out on the motion of the plaintiff in whose behalf it had been previously introduced and the jury was instructed to disregard it, but in our opinion the error in receiving this evidence was not cured by striking it out and instructing the jury to disregard it. The plaintiff took the risk of error in insisting upon its admissibility. The impression which the proof must have made on the jury was not so easily eradicated. All concur, except Thompson, J., who dissents and votes for affirmance.
