
    Lillie Nelson, Plaintiff, v. The Forty-Second Street, Manhattanville and St. Nicholas Avenue Railway Company, Defendant.
    (Supreme Court, New York Trial Term,
    July, 1907.)
    New trial — Grounds — Misconduct of parties, counsel or witnesses — Misconduct of adverse counsel.
    Where, in an action against a street railway company for personal injuries to a passenger, the plaintiff’s counsel in summing up stated to the jury “A man got $1,750 here yesterday for a shoulder ”, to which defendant’s counsel excepted, a verdict1 for plaintiff should be set aside, although plaintiff’s counsel professed his willingness that the jury be instructed in the strongest terms to disregard the remark.
    Motion for a new trial.
    George B. Class, for plaintiff.
    James L. Quackenbush, for defendant.
   MacLean, J.

In a sudden start case wherein the testimony of the plaintiff, corroborated by one witness, was contradicted by that of three seemingly disinterested persons besides the motonnan, conductor and inspector, the plaintiff’s counsel in summing up said: “A man got $1,750 here yesterday for a shoulder.” Before he could go further the defendant’s counsel interposed; “I ask for the withdrawal of a juror on that.” To which plaintiff’s counsel returned: “ The sentence was not completed and I am entirely willing that the jury may he instructed to disregard it in the strongest terms.” Thereupon the court ruled: “ The motion to withdraw a juror is denied. You may proceed.” Counsel for the defendant took an exception. Two other applications for the withdrawal of a juror were made for other and lesser extravagations of zeal for the plaintiff’s sake. Ho allusion was made in the charge to these improprieties, the court, from observation had and inquiry made upon both sides of the bar, having no faith in retraction by others than those whose words should be withdrawn, and little trust in the efficacy of correction of statements by counsel or judge construable by jurymen into furtherance of the prejudice commonly obtaining in favor of the person — this time a woman ■— bringing the action and the frequent feeling that one who has been hurt should get something from somebody. Effort would have been futile to eliminate by disparaging instruction the effect of .the suggestion, apparently well driven home, that it but remained for the jury to assess the damages, of which one item in the tariff was $1,750 for a shoulder. The motion to set aside the verdict and accord a. new trial is granted.

Motion granted.  