
    Third Department,
    June, 1933.
    Anna L. Ryan, Respondent, v. J. Herbert Hirst, Appellant.
   Judgment and order affirmed, with costs. Hill, P. J., Rhodes, Crapser and Heffernan, JJ., concur; Bliss, J., dissents, with a memorandum.

Bliss, J.

(dissenting). I dissent and vote to reverse the judgment and order appealed from for the following reasons: In his opening plaintiff’s counsel made reference to the death of the plaintiff’s mother who sat beside plaintiff in the automobile, the inference being that the defendant was the cause of this death. The plaintiff referred twice to some alleged injuries to her eyes, although such references were not competent. The plaintiff or her attorney made seven references to an alleged concussion of the brain or a brain injury, six of which references were deliberately made after the court had ruled that such testimony was improper. The plaintiff or her attorney made two references to treatment by a dentist when there was no proof of any injury necessitating such treatment. The plaintiff or her attorney also made reference to a lump in her throat and to a nervous condition when evidence as to the same was incompetent. All of these references to alleged injuries were not within the pleadings and objections were sustained to the questions or the testimony was stricken out. Nevertheless they were before the jury and constituted an obvious attempt by the plaintiff to prejudice the jury. Also, the court allowed an amendment to the complaint setting up a permanent injury to the ear when none had previously been alleged and the plaintiff’s proof as to such permanent injury had been stricken from the record. After the allowance of this amendment such testimony was reinstated, although the witness who gave it had departed and there was then no opportunity for defendant to cross-examine with relation to it. Counsel for plaintiff, on the argument, made some statements as to some of defendant’s physicians being still in court when this amendment was permitted, but there is nothing in the record to confirm such statements.  