| NY | Dec 17, 1909
None of the defendant's exceptions to rulings upon evidence, or upon instructions to the jury, presents error, justifying the reversal of the judgment by the Appellate Division. Hence, as the order appealed from states that the reversal was "on questions of law only," it must be reversed and the judgment of the Trial Term affirmed. The errors principally insisted upon by the appellant below and respondent here, and which are discussed in the opinion below, relate to exceptions taken by the defendant to the remarks of the plaintiffs' counsel in summing up his case to the jurors. These exceptions were addressed to the discretionary powers of the trial court and of the Appellate Division, and they raise no question of law for review by this court. If counsel exceed the limits, set by good faith, or by fair dealing, in their comments on the testimony, the facts, or the incidents of the trial, the broad powers of the Appellate Division enable that court to order a new trial, if it is considered that the verdict has been unduly affected and that the rights of a party have been prejudiced. Upon the theory of the reasoning in the prevailing opinion below, the court should have reversed upon the facts; in which case a new trial would follow, which, presumably, would be freed from the objections pointed out.
The order appealed from should be reversed and the judgment of the Trial Term affirmed, with costs in both courts to the appellants.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.
Ordered accordingly. *66