
    Albert M. Kingsley, Administrator, etc., Plaintiff, v. Finch, Pruyn & Company, Incorporated, Defendant.
    (Supreme Court, Warren Trial Term,
    May, 1907.)
    Mew trial — Grounds: Misconduct of parties, counsel, or witnesses" Misconduct of adverse counsel: Verdict or findings contrary to law or evidence — In general — Where neither Mas, passion, prejudice nor corruption appears.
    Verdicts should not ordinarily he set aside as against the weight of evidence unless there is something in the record which indicates that the jury was influenced by bias, passion, prejudice or corruption.
    It is not to he assumed that a jury is influenced by every lapse in speech or impropriety of conduct on the part of counsel; and, where they are all met by reproof from the court and the court instructs the jury to disregard them, they should not he regardéd as ground for granting a new trial unless they were such matters as would influence the court itself.
    Motion by defendant to set aside verdict in favor of plaintiff as against the weight of evidence.
    Kellogg & Barker, for motion.
    Kiley & Bush, opposed.
   Spencer, J.

The inutility of setting aside verdicts as against the weight of evidence has been established by long experience. The hooks are full of instances where two, three, and even four trials have been had in succession without change of result. The rule to which I think the courts must ultimately come is that no verdict in such a case should- be set aside by the trial court as against the weight of evidence unless there be something in the record that indicates that it was influenced by bias, passion, prejudice or corruption, mid, therefore, some prospect of a different result upon a retrial. McCann v. New York & Queens County R. R. Co., 73 App. Div. 305. Such was the holding of this court in the case of Huntington v. Hudson Valley R. R. Co." (unreported), recently unanimously affirmed without opinion by the Appellate ¡Division of this Department. The setting aside of verdicts by trial courts, simply on the ground that the same are against the weight of evidence, should not be encouraged. It only occasions delay, incurs needless expense and burdens the trial terms.

In the case at bar the plaintiff produced" no eyewitness to the accident, but Baril, one of his witnesses, sáw the infant upon the ground in the driveway immediately before the team entered and saw his dead body almost immediately thereafter on the ground in the rear of the wagon. The trial court was of the opinion that the testimony. of this witness, in conjunction with the other testimony and the surrounding circumstances, required a submission of the facts to the jury. McDonald v. Metropolitan St. R. Co., 167 N. Y. 66. Without a contrary decision of that question it is hardly to be expected that a retrial will result in a different verdict. On a retrial the court would be expected to follow the decision, of the first trial 'on this question, and it, therefore, seems useless to have a retrial until that question has been passed upon by a higher court.

I have examined the record with some care and find nothing which indicates that the verdict was influenced by any improper matter or circumstance. The objections made by defendant’s counsel to certain remarks made by plaintiff’s counsel in his address to the jury were sustained by the trial court, and the jury on each occasion specifically charged to disregard such remarks. Unfortunately the stenographer’s minutes fail to set forth the remarks of the court. The stenographer is not expected to take down what transpires during the address of counsel unless requested. He was not so requested in this case, and, therefore, what appears upon his minutes is simply memoranda made by him subsequently to the event and does not in this instance adequately indicate what took place. Furthermore, it should not be assumed that a jury is influenced by every lapse in speech or impropriety of conduct on the part of counsel. The court should not presume that a jury will be influenced by suck a matter unless it would itself be influenced thereby. In harshly judging the jury, the court may put itself as well as the jury upon a plane of inferiority. Nor should it be forgotten that attempts to move juries by such means are liable to rebound upon the perpetrators. The high grade of intelligence now found in the jury box is seldom swayed by such matters and, when it occurs, the trial court has little difficulty to detect its presence. Reproof by the court should be regarded as sufficient to correct the error." Instances where the court fails to reprove or apparently permits the misconduct belong to another class, and a different rule may well be adopted in regard to them.

Motion denied.  