
    James S. Walter, Respondent, v. Adrian H. Joline and Douglas Robinson, as Receivers of the Metropolitan Street Railway Company, Appellants.
    First Department,
    January 21, 1910.
    Appeal — errors not prejudicial — trial—misconduct of attorney — evi- . dence — statements of witness called at former trial.
    Unless an'error at trial is so substantial as to raise a presumption of prejudice it ■ is not ground for reversal.
    Judgment in an action to recover for personal injuries reversed because the plaintiff’s attorney, against objection and contrary to the ruling of the court, persistently during the opening, trial and summing up brought in prejudicial all usions to occurrences upon a former trial, with tile design of creating hostility toward the defendant and óf obtaining a verdict based on prejudice..
    Where a witness who was called by the defendant at a first trial is not. recalled on a new trial, the plaintiff should not be allowed to cross-examine witnesses as to statements made by the absent witness on the prior trial.
    Appeal by the defendants, Adrian H. Joline and another,, as receivers, etc., from a judgment of the'Supreme Court in favor of the plaintiff, entered in-the office of the clerk-of the county of New York on the 10th day of June, 1909, upon the verdict of a jury for $2,000, and also from an order- entered in said clerk’s office on the 9th day of June, 1909, denying the ..defendants’ motion for a hew trial made upon the minutes.
    
      Bayard II. Ames of counsel {John Montgomery with him on the brief], Masten ■<& Nichols, attorneys, for the appellants.
    
      I. Henry Harris, for the respondent.
   Clarke, J. :

Plaintiff was a passenger on a Broadway car. He alleged that he liad been thrown from said car and received the injuries complained of by reason of the premature.and negligent starting thereof as he was alighting therefrom. A question of fact was presented for the jury, which ivas resolved in favor, of the plaintiff.

The Court of Appeals in Post v. Brooklyn Heights Railroad Co. (195 N. Y. 62) has said: “There are errors in this record, .hut we' find none calling for reversal when the circumstances under which the erroneous rulings were made and their probable effeqt on the result are taken into account. Under our system of appeals every error does not require a new trial, for the vast judicial work of the State could not be done on that basis. Unless the error is so substantial as to raise a presumption of prejudice, it should be disregarded, for undue delay is. a denial of justice.”

Mindful of the salutary rule thus enunciated, we would not interfere with this verdict were it not for the fact that the record discloses such misconduct on the part of plaintiff’s attorney as clearly • requires the granting of a new trial in the interests of justice.

It appears that upon a previous trial of this case, had about two weeks prior thereto, a juror had been withdrawn and a new trial ordered. Immediately after the jury had been impaneled in" the case at bar, counsel for the defendants said : I ask that the opening of plaintiff’s counsel be taken down, and I warn him now that if he states anything about any former trial I shall move for the withdrawal, of a juror.” Plaintiff’s counsel stated upon the opening : The case itself, gentlemen, has had rather a checkered career, as will appear from the testimony which I will bring out. This case was tried before with no result and a juror was withdrawn. It becomes necessary for me to state this to yon at the outset, because . I shall put upon the stand two of the jurors who sat in that box and because of something that they noticed while jurors on the outside of the case.” Whereupon defendants’ counsel moved for the withdrawal of a juror, which was denied. He then asked that the court “ direct the jury that they shall absolutely disregard the statement of counsel as to whatever occurred upon a previous trial,” which the-court denied. Further in his opening plaintiff’s counsel said : “ He cannot work as a waiter; he is not an educated man, and he can find no employment as a waiter. In fact he has been a charge upon the church, and hasn’t been able to work.” This was objected to. The court stated: That is very improper.” Defendants excepted, and moved to withdraw á jtiror. The court said: “ I do not think that will affect the jury, but counsel for defendants tells me that the jurors whom you propose to call will give testimony with reference to a witness on the former trial, who is to be discreditéd thereby, and he says he is not going to call that witness because the improper suggestion of which you complained was made to the plaintiff. * * * After conferring with counsel, I desire to instruct you that you are to pay no attention whatever to the opening remarks of the plaintiff’s attorney as to what he intended to prove by any jurors on a former trial, and you will disregard any remarks of his about a former trial.”

In the cross-examination of the conductor, who was a witness for the defendants, the following occurred : “ [By plaintiff’s counsel.] Q. Do you remember on the last trial of an officer by the name of Meyers testifying? [Objected to as incompetent, irrelevant, immaterial and not proper cross-examination.. Objection overruled ; exception.] Q. A man by the name of Meyers was on the stand, wasn’t he, a police officer ? A. . Yes, sir. Q. And he testified for the defendants, didn’t hé ?. [Same objection ; objection overruled ; exception.] A. Yes, sir. 1 don’t think he is in the court room. * * * I was here in the court room when Meyers was cross-examined. * * * Q. Do you' recall Meyers testifying on the direct examnation by Mr. Cole that the plaintiff got off the car while the car was moving and that he saw him getting off and ran to him ? A. I can’t remember what Meyers said at all. [Same objection ; objection overruled; exception.] Q. Do you remember Mr. Cole asking Mr. Meyers, the police officer, whether or not he had made a note in a notebook of how the accident happened for the purpose of making a report to the station house ? [Same objection ; objection overruled ;, exception.] A. Yes, sir. [Defendants’ counsel]: Do I need to take any further objections to this line? The Court: No. [Defendants’ counsel] : I have one exception to all this line of testimony? The Court': Yes.” And thereafter there were two pages in the printed record of examination, of this witness concerning the testimony of Meyers given upon the former trial, a witness; who had not been produced- upon this trial.

We know of no theory under which such testimony could be held relevant. Its admission was improper, objectionable and prejudicial. At-the close of the case counsel for the defendants moved to strike out all the testimony brought out from the conductor on cross-examination as to what took place on the previous trial, and the motion being denied, excepted. Counsel further asked the court to instruct the jury that “ the failure of the defendants to call any witnesses cannot be construed by them in any manner whatsoever. The Court: You mean these witnesses Mr. and Mrs. Beterman and Mr. •Meyers, the policeman ? [Defendants’ counsel] : Yes. ■ The Court: I do so say to yon, gentlemen, that the failure of the railroad company to call the witnesses named is not to be considered by you in their prejudice.”

During the summing up counsel for the plaintiff said: Why isn’t the officer in court ? He isn’t called because he testified favorably to the defendants and because he is a good, nice witness and because he could stand the probe of cross-examination. * * * Why do you suppose Mr. and Mrs. Beterman are not in court ? [Counsel for defendants] : I object to this and move to withdraw a juror. The Court: I thought yon understood my ruling on that. [Plaintiff’s counsel] : I didn’t understand chat your Honor rules that I couldn’t comment on it. The Court: 1 did. I made it very plain to you that I would charge the jury that the absence of these witnesses should not be deemed prejudicial to the defendants. [Counsel for plaintiff] : Can’t I comment on that, that they haven’t been called? The Court: Ho, sir; not under my ruling. [Counsel for plaintiff] : I did’nt understand your Honorio rule as strong as that. The Court: I do.”

It thus appears that from the very commencement of the trial to the close thereof the attorney for the plaintiff persistently injected into the case prejudicial allusions to occurrences upon the former trial, and by improper questions testimony affecting a witness upon that former trial not produced upon this trial. The purpose of such conduct was obviously intended to affect the jury; to persuade them that the plaintiff ought-to have a verdict on this trial because of what had occurred on a former trial. It was deliberately calculated to arouse hostility towards the defendants and obtain a verdict based on prejudice instead of reason. However good a litigant’s cause of action maybe, a verdict recovered under such circumstances ought not to stand. Courts of justice exist for the purpose of securing a fair determination of controversies. The judgment appealed from lacks that fundamental essential.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.  