
    Richard Vadney, Respondent, v. The Albany Railway, Appellant.
    
      Evidence—in am, action based on a wrongful expulsion from a street earn, evidence that the plaintiff was charged with disorderly conduct and acquitted is improper.
    
    In an action against a street railroad company for the alleged wrongful expulsion of the plaintiff from one of its cars, in which one of the crucial questions is whether the plaintiff was guilty of disorderly conduct on the car, it is error to admit evidence that some days after the occurrence he was arrested upon the complaint of the conductor of the car, charged with disorderly conduct, and was acquitted after a trial.
    Appeal by the defendant, The Albany Railway, from a judgment of the Supreme Court in favor the plaintiff, entered in the office of the clerk of the' county of Albany on the 14th day of February, 1899, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on the 14th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff was ejected from a street car by the conductor, the defendant claiming that the plaintiff was guilty of such disorderly conduct as to justify the act of the conductor, and the plaintiff claiming that he was not guilty of disorderly conduct and that the ejectment was wrongful.
    
      John H. Gleason, for the appellant.
    
      John Scanlon and Mark Cohn, for the respondent.
   Kellogg, J.:

One of the principal questions for the jury to pass upon in this case, and the one most sharply litigated, was whether or not the plaintiff was guilty of disorderly conduct on the street car which called for the interference of the conductor. On the crucial question tried, and whére the evidence is measurably balanced, it is of importance always to see that no improper evidence gets before the jury which reasonably might affect their minds and change the balance. An examination of the case shows that there was enough presented before the jury to ■ allow' them to infer that some days ■ after the transaction the plaintiff had been arrested on complaint of the conductor, charged with disorderly Conduct on the occasion under inquiry, and had been tried and acquitted. As the arrest constituted no part of the act-of ejectment, and damages for such arrest could not be considered in this action, the evidence should have been excluded. ' .

The ' printed case shows this to have occurred, on the trial :• “Richard Yadney recalled by plaintiff. Question (by plaintiff’s counsel): JDi'd this conductor enter a complaint against yon before the recorder of the city of Cohoes ? [Objected to, as incompetent immaterial and irrelevant.] The Court: You may'state why you saw a lawyer. [Defendant éxcepts.] A. Because I was arrested. Q. Dam,- too? A. Yes, sir. -Q, On the complaint of this conductor? A. Yes, sir. [Defendant’s counsel moved to strike out the evidence as incompetent, immaterial and irrelevant. Motion denied. Exception.] * * * Q. Were you acquitted on that charge ? [Objected to as immaterial, incompetent and irrelevant. Objection overruled. . Exception.] ' A. Yes, sir.”

It is not! difficult to see that this evidence might have had an important bearing in the minds of the jurors1 on the question Of actual disorderly conduct, and also on-the question of 'damages. They might have considered that the question of disorderly conduct charged had been once tried out and settled in plaintiff’s favor. And they might have been induced to enhance the damages because Of the groundless arrest. As pertinent to this view of what the jury might have considered, we find this language used in the charge of the learned trial justice: “ I am not going to quote .'from this evidence to you. It has just been taken. It is fresh in your minds and in your memories. You have heard it all and paid-strict attention-to it. * ' * * In "the light of the evidence before you, then the question would be one of damages. On -that -question it is simply the duty of the court to say you are the judges of what damages should be allowed.” I find nothing in the charge implying, that the jury might not properly regard with such weight as they might choose the fact of a .previous acquittal of the charge of disorderly conduct, or that they might not properly take it into account in fixing damages the groundless arrest.

I think the judgment should be reversed, a new trial granted, costs to abide the event.

All concurred, except Herrick, J., not sitting.

Judgment and order reversed and a new trial granted, costs to abide the event.  