
    Amala Englert, Resp’t, v Herman Kruse, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1887.)
    
    1. Practice—Trial by jury—Evidence—Admissibility op.
    Evidence clearly irrelevant and improper, or that which would have a tendency to excite the passion, arouse prejudices, awake the sympathies or warp or influence the judgment of the jurors in any degree, cannot be considered harmless. Jury trials should be strictly confined to the issues made and the legitimate facts bearing upon them.
    2. Same—Objection to evidence, when not necessary to repeat.
    Where the second objection was in effect a mere repetition of the first, and the court had ruled on it, it was unnecessary to repeat the objection.
    Appeal from a judgment entered on the verdict of a jury and from an order denying a new trial.
    
      Jacob Marks, for resp’t; Jerrolomar & Arrowsmith, for app’lt.
   Per Curiam.

This action was brought by the plaintiff to recover damages for personal injuries received by her in consequence of slipping and falling while descending the stairs in the defendant’s premises.

Two of the banisters on the stairs were missing, but it is not claimed that plaintiff slipped because of the absence of the banisters; only that her injuries were caused or aggravated by reason of her foot slipping in the vacant space.

On the trial, defendant was a witness, and on his cross-examination he was asked, “Is this the only tenement property that you own ? ”

Defendant objected to the question, but the objection was overruled and he excepted.

The question was then repeated in substance, and he answered, “Yes, sir.”

He was then asked , “What else ? ” and his answer was, “ Two little things; a two story and one four story.” And then followed other questions tending to show that defendant was a man of'-some means and not in business.

We think this evidences was entirely inadmissible, and was clearly to defendant’s prejudice.

In Myers v. Malcolm (6 Hill, 292), the court, by Nelson, Oh. J., says: “But a new trial in this case must be granted for the error committed by the judge in admitting evidence of the wealth of one of the defendants., This was clearly inadmissible, and it is impossible to say what effect it may have had upon the verdict; nor is it important to inquire, as this is a bill of exceptions-. The plaintiff was entitled to the damage he had sustained, and nothing more, without regard to the ability or poverty of the defendants. The admission of the evidence implied at least that the jury graduate their verdict, in some measure, by the means possessed by the defendants to satisfy it.”

In Hutchins v. Hutchins (98 N. Y., 57, 65), Rapallo, J., says: “The evidence as to the wealth of Phineas was clearly irrelevant and improper, and cannot be said to have been harmless. Illegal evidence that would have a tendency to excite the passion, arouse the prejudices, awake the sympathies, or Warp or influence the judgment of the jurors, in any degree, cannot be considered harmless;” and quotes, with approval, á remark by Leonard, J., at general term, in that case, that ‘ ‘ nothing could be better fitted to direct the minds of the jury from the true issue, than a pathetic contrast between the widow of a rich brother and the poor defendant.”

Respondent now contends' that only the first question was objected to, and that no objection was made to the second; but we think that the second was a mere repetition of the first in effect, and as the court had already ruled on it, it was not necessary to repeat the objection; and so respondent seems to have thought when preparing his, brief, for he then treats it as if the exception had been repeated, and claims it was competent on cross-examination, but does not show how it was, while we think it had a, direct tendency to prejudice the minds of the jury, by strongly contrasting the poor injured woman and the rich and careless landlord.

We also think the objection and exception to the question asked of the plaintiff: “State whether or not the defendant stated to you that he had had some accident in the house, and that he ought to have it fixed, or in some other house?” Well taken.

The question was not confined to these stairs, nor even this house. The answer to the question left the jury to infer that the defendant had had just such an accident in his house before; that he had left his stairs in the condition the plaintiff testified they were, and that he was a careless and indifferent landlord and ought to be punished.

In the case of O'Hagan v. Dillon (76 N. Y., 172), a witness was asked : “Do you know anything about a party recovering a judgment of $5,000 before Judge Van Brunt?” and he answered, “I did hear from some parties outside-that there was such a thing;” and the court said : “ The-question itself had an injurious tendency, and the answer still mofe so ” The plaintiff should at least have disclaimed the answer and declined to receive it. Jury trials should, be strictly confined to the issues made, and to the legiti - mate facts bearing upon them; and the practice of dragging in extraneous matters to influence the jury cannot be too-strongly condemned.

As we think a new trial should be ordered, for these- . errors in admitting evidence, it is unnecessary to examine the other questions raised on this appeal.

The judgment should be reversed and a new trial ordered,, with costs to the appellant to abide the event.  