
    Pasqual Antonia Riche, Resp’t, v. Lawrence Martin, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed February 8, 1892.)
    
    ‘Trial—Improper remarks of counsel.
    A judgment will not be reversed on account of improper remarks of counsel in summing up to the efEeot that defendant had offered judgment for part of the claim, where the court told the jury that the remarks should not influence their verdict, especially where the verdict is for the whole sum claimed.
    Appeal from a judgment entered herein upon the verdict of a jury on November 13, 1891, in favor of the plaintiff for $747.57, .and from an order denying a motion for a new trial entered on the 23d day of November, 1891.
    The complaint alleges:
    
      First. That defendant made a promissory note to the order of the plaintiff, dated New York, March 25, 1891, and delivered the ■same to the plaintiff, and thereby promised to pay the sum of $632 thirty days after said date at the Twenty-third Ward Bank in the city of New York.
    
      Second. That at maturity and before the' commencement of this action, said note was presented for payment at the said bank and •.same was refused.
    
      ■Third. That the plaintiff was and ever since the making and •delivery of said note has been the holder and owner of said note, and that no part thereof has been paid.
    
      For a first defense: The defendant in his answer admits the •signing of a note similar in some respects to that set up in the •complaint; that he has no knowledge or information sufficient to form a belief as to' the allegations in the second and third para•graphs of the complaint.
    Denies each and every other allegation not hereinbefore specifically admitted or denied.
    
      For a second defense: That prior to the commencement of this action he paid to the plaintiff on account of and in payment of the said note the sum of $330.
    
      
      For a third defense: That the said promissory note is absolutely null, illegal and void.
    That said note was given upon the usurious agreement, that the ■defendant would pay fqr the use of the money mentioned in said note a greater rate of interest than the legal rate of interest in this .state, to wit, at a greater rate than 100 per cent per annum.
    
      A. C. Astarita for resp’t; Kellogg, Bose & Smithy for app’lt
   McGown, J.

Upon the trial herein and upon the cross-examination of the defendant by plaintiff’s attorney, the following question was asked:

'■ Q. Why did you make a note for $612, if you had already paid him ? ”

Whereupon defendant’s attorney stated: “We are willing to pay him the amount of the note, except what we have paid him. I shall not insist as to anything on account of usury. We had this money, and we paid him $329.75, and for the balance of .$282.25, with interest from the date of this note, we are willing he should have judgment for.”

By this admission the defense of payment as set up “ for a second defense ” in defendant’s answer was the only issue before the •court to be passed upon by the jury, and this being an affirmative defense, the burden of proving payment was upon the defendant ■to establish such defense by a preponderance of evidence.

The defense upon the- cross-examination of plaintiff having brought out the matter of the payments plaintiff’s attorney undoubtedly had the right to ask on his re-diredE examination the •questions as to such payments, and the court in reply to a .statement made by defendant’s attorney said: “As I understand it, he got $229.75 in cash; $129.75 he said he gave to the labor•ers, and the other $100, he said Mr. Martin told him was on account of his wages, and the balance due, he said he would pay him .as soon as possible. If all these things are so, the money so paid •cannot constitute a counterclaim.”

To which defendant’s attorney replied: “ There is no question .about that.”

Certain payments were made by defendant to the plaintiff, and the defendant had a perfect right to direct the application of these •payments, and i-n the absence of such direction the plaintiff could ;apply such payments to any indebtedness then existing on the part of the defendant to him.

The amount of such payments, the directions, if any, made by the defendant at the time of such payments, were questions of fact to be passed upon by the jury, upon all the evidence submitted, :and the court will not disturb the verdict of a jury rendered upon conflicting evidence, where the law of the case is properly passed upon by the court, unless the verdict is contrary to the evidence, or contrary to the law, or the jury was influenced by passion, prejudice or other improper motives or conduct in arriving at their verdict

The trial justice in his charge to the jury fully, clearly' and fairly presented the issues to be passed upon herein to the juryt and evidently to the satisfaction of, and with the approval of the defendant’s attorney, as no exceptions were taken by him thereto, and we think, after a careful examination of the whole case, that the verdict was fully warranted by the evidence submitted to them.

The defendant’s attorney, in the third point of his brief, claims that .a remark made by plaintiff’s attorney while defendant’s attorney was summing up was improper, and that the verdict, rendered should not for that reason stand.

Plaintiff’s attorney, while defendant’s attorney was summing-up, openly remarked, “ That the defendant had offered judgment for the sum of $322,” which remark defendant’s attorney then declared “ was improper,” and was objected to by him, whereupon the trial justice “rebuked the counsel for the same, and told the-jury that the remarks should not influence their verdict.”

The jury’s verdict for the whqle amount claimed we think shows conclusively that it had no effect upon their verdict.

In Holmes v. Moffat, 120 N. Y., 159; 30 St. Rep., 779, improper evidence was admitted, objected to, and a motion made to-strike it out which was denied. The court subsequently came to the conclusion that the evidence should not have been admitted,, and^in the charge to the jury stated: “I withdraw it from your-consideration, as I do not believe it to be proper or material. * * * I think it my duty to say to you that that particular-portion of the answer to the seventh interrogatory * * * is-not before you as evidence at all.’

Parker, J., in&is opinion (at p. 162) stated:

“ It is now settled that if the mistake be immediately discovered,, and the evidence properly stricken out, the error will be deemed cured, and the exception to its admission deprived of all potency.”* Citing Gall v. Gall, 114 N. Y., 109; 22 St. Rep., 746, and further states; “ They (the jury) were informed that the objectionable-testimony was not before them as evidence at all, and we are of the opinion that such instruction, coupled with the positive directions to disregard it, must be deemed to have been effectual for the purpose intended.”

In such cases the remedy of the party is to ask for instructions-to the jury to disregard it. Platner v. Platner, 78 N. Y., 90; Pontius v. The People, 82 id., 339.

We have the exceptions taken by defendant’s attorney, and find that they were not well taken.

The judgment and order appealed from must be affirmed,' with, costs to the respondent

Yak Wyok, J., concurs.  