Mullarkey v. Interurban Street Railway Co.

| N.Y. App. Term. | Jul 1, 1905

Per Curiam.

This case has been twice tried, a former judgment in behalf of plaintiff having been reversed on the ground that the verdict- was against the evidence.- The evidence to sustain the verdict in the present case is by no means satisfactory; but, after two juries have arrived at the same conclusion as to the facts, we should be disposed to accept the second verdict were it not for the persistence of plaintiff’s counsel in making statements to the jury, unsupported by any evidence in the case and calculated, as well as designed, to prejudice the jury against the defendant. In a case where there is so much doubt, as in the present, whether the evideuce is sufficient to sustain the verdict, we may not say that these irrelevant and improper statements did not turn the scale in plaintiff’s favor.

Present: Scott and MacLean, JJ.; Giedersleeve, J., taking no part.

Judgment reversed and new trial granted with costs to appellant to abide event.