
    John Nieves, Respondent, v. City of New York, Appellant.
    First Department,
    October 24, 1950.
    
      John P. McGrath of counsel (Seymour B. Quel and Fred Iscol with him on the brief; John P. McGrath, Corporation Counsel, attorney), for appellant.
    
      Jacob D. Fuchsberg of counsel (Benjamin H. Siff and Henry Cohen with him on the brief; Herman Fink, attorney), for respondent.
   Per Curiam.

Although counsel may justifiably disagree with the court’s rulings on the exclusion of evidence, there is no justification for counsel in summation disregarding those rulings, criticizing the rulings, criticizing the objections of opposing counsel which prompted the rulings, asserting that the rules of evidence are artificial and attempting by suggestion and insinuation to get before the jury the matters excluded. The summation of counsel for defendant in these respects went beyond the permissible latitude of summation and the court was warranted in setting aside the verdict for the defendant, which was possibly obtained by this prejudicial conduct. While ordinarily we would agree that instructions from the court to the jury to disregard the comments of counsel, particularly in the absence of a motion for a mistrial, should be regarded as correcting the error, we are not persuaded that such was the case here in view of counsel’s insistent pursuit of an improper course, and we think that under the circumstances counsel for plaintiff was not obliged to move for a mistrial to preserve plaintiff’s rights to a fair trial.

In affirming the order appealed from we think it advisable, however, for the guidance of the court on the third trial of this action, to indicate generally that the evidence which was excluded should have been admitted and that the defendant should have considerable latitude in the examination of Abramowitz and Steffos and otherwise to develop its contention that the testimony they gave on the first trial was perjured and suborned by representatives of plaintiff.

The order appealed from should be affirmed, with costs to respondent.

Cohk, J.

(dissenting). The order of the Trial Term, which set aside a verdict of a jury in favor of defendant in a negligence action, was based solely upon the ground of alleged prejudicial conduct by defendant’s trial counsel.

This was the second time this case had been tried. Upon the first trial Honorable Samuel Null, a highly respected Justice of the Supreme Court, set aside a verdict of the jury in favor of plaintiff for the reason that there was ‘1 perjury and fraud here without question. That perjury and that fraud is borne out by the cold printed record. ’ ’ From that order no appeal was taken. Upon this trial a jury, after having heard all of the testimony and being deprived of evidence which the majority of this court now says was improperly ruled out, rendered a unanimous verdict in favor of defendant. In my opinion that verdict was fully warranted by all the evidence. Indeed, when plaintiff moved to set aside the verdict, the trial judge stated: “ I feel from the evidence that was adduced the jury had the perfect right to bring in the verdict that they did.”

The assistant corporation counsel who tried this case for the City of New York, doubtless through an excess of zeal, made remarks in his summation and during the course of the trial which were ill-advised and improper. In each instance, when objection was made to the improprieties, the court instructed the jury to disregard them. It is, of course, presumed that the jury followed the court’s instructions in that regard. Plaintiff’s counsel at no time moved for a mistrial as was his absolute right. An experienced attorney, he apparently felt that the court’s admonitions sufficiently corrected any prejudice that might have been created and he was perfectly willing to let the jury pass upon the issues. The court, in the circumstances, was not warranted in granting a new trial upon the ground set forth. Accordingly, I dissent and vote to reinstate the verdict of the jury.

Peck, P. J., Glennon, Callahan and Shientag, JJ., concur in Per Curiam opinion; Cohn, J., dissents and votes to reinstate the verdict of the jury, in opinion.

Order affirmed, with costs to the respondent.  