
    George K. Horton, Respondent, v. Albert Terry, Appellant.
    Third Department,
    May 6, 1908.
    Trial — summing up — statements not justified by evidence.
    Statements made by plaintiff’s counsel in summing up in a close case, which are wholly immaterial, not justified by the evidence, but designed only to prejudice the jury, call for a reversal.
    Appeal by the defendant, Albert Terry, from a judgment of the County Court of Ulster county in favor of the plaintiff, entered in the office of the clerk of said county on the 23d day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Howard Chipp, for the appellant.
    
      James Jenkins, for the respondent.
   Per Curiam:

The action was to recover a balance alleged to be due the plaintiff from the defendant on an exchange of horses. The defendant pleaded a general denial and payment. The evidence on the trial was conflicting. The case was closely contested, and on some of the issues the evidence was quite evenly balanced. In his summing up to the jury the plaintiff’s counsel said “that Mr. Terry (the defendant) is a wealthy brick man that has put the price of brick up, and that he is an importer of negro labor.” There was nothing in the evidence justifying any of these statements, and if there had been, they were wholly immaterial upon any question being litigated. The only possible purpose of making these remarks was to excite the prejudices of the jury against the defendant, and, as the case was a very close one under some .of the issues presented for trial, it is reasonable to assume that the verdict in favor of the plaintiff was influenced thereby. We think in a close case such as this was, we cannot under the authorities overlook the exception interposed by the defendant’s counsel, at the time, to these remarks, and that a new trial should be granted. (Bagully v. Morning Journal Association, 38 App. Div. 522; Stewart v. Met. St. R. Co., 72 id. 459; Strickland v. N. Y. C. & H. R. R. R. Co., 88 id. 367; Benoit v. N. Y. C. & H. R. R. R. Co., 94 id. 24.)

So long as counsel in their addresses to juries keep fairly within the issues and the evidence, large liberty of discussion should be afforded them, but when they depart entirely from the evidence in their arguments, and make remarks intended solely to excite the passions or prejudices of a jury, there is every reason, especially in a close case, why the court should intervene and protect a party from a verdict rendered against him which may have been influenced by such remarks rather than by the evidence in the case.

The case of Dimon v. N. Y. C. & H. R. R. R. Co. (173 N. Y. 356), cited by the respondent, contains nothing against this view. There the Court of Appeals failed to find in the record any proper exception which permitted it to pass upon the character and tendency of the closing address of plaintiff’s counsel to the jury, and it pointed out a method by which such an exception could propei'ly be procured, but here the defendant’s counsel promptly called attention to the improper remarks -and the court allowed him an exception thereto.

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

All concurred.

• Judgment and order reversed and new trial granted, with costs to appellant to abide event.  