
    Solomon Raisler, Respondent, v. Julius Benjamin, Appellant.
    First Department,
    July 13, 1909.
    ■Appeal—case—when, appellate court will examine exceptions only—■ physicians—malpractice—evidence — res inter alios acta — trial—■ failure to instruct jury to disregard evidence stricken out.
    Where a case on appeal contains no order denying the defendant’s motion for a new trial, and the statement that the case contains all the "evidence has been stricken out by stipulation, the appellate court will only examine the exceptions. It will not determine whether the verdict is supported by the evidence or whether the damages are excessive.
    In an action against a Christian Science healer for malpractice it is error to admit testimony of third persons that the defendant held himself out to them as a physician and administered to them what purported to be medicine where it is not shown that these facts were communicated to the plaintiff or that he relied upon them.
    The error is not cured by striking out such evidence if the jury was not instructed to disregard it.
    Appeal by the defendant, Julius Benjamin, 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 22d day of June, 1908, upon a verdict of the jury for $6,000, and also (as stated in the notice of appeal) from an order denying the defendant’s motion for a new trial made upon the minutes.
    
      D. W. Steele, Jr., for the appellant.
    
      John H. Taylor, for the respondent.
   Scott, J. :

This is an action against a so-called. Christian Science “ healer ” for .malpractice, The complaint alleges that the defendant held himself out and represented himself as a physician; that plaintiff, having a malady in his foot, resorted to defendant, who undertook to treat and prescribe for him ; that he deterred plaintiff from going to other physicians; that the treatment was of no value and not calculated to relieve or cure plaintiff’s malady; that, relying upon defendant’s promises and assurances, the plaintiff neglected to go to another physician .until it was too late, as a result of which he was obliged to suffer amputation, first of his toe, and afterwards of his foot. Defendant denied that he represented himself as a physician, or that he gave any drugs or medicines. ' On .the contrary, he avers that he told plaintiff from the beginning that his treatment was non-medical,. and consisted of prayer, meditation and religious exhortation. The plaintiff has .suffered for many years from an obscene disease which had produced a sore in his foot. His general charge against defendant is that he had relied upon his advice, in consequence of the representations made to him by said defendant that he was a physician and could cure him. He does not charge that defendant’s treatment of itself was harmful, but that it was not beneficial; and that he was prevented by defendant’s representations and protestations from making a timely visit to some bona fide physician, which, as he believes,, would have resulted in a cure.

We have much doubt whether the verdict is supported by the evidence and we consider the damages to be excessive under, all the circumstances, but the state of the record, precludes us from disturbing the judgment on either of these grounds. There is no order denying defendant’s motion for a new trial, and a statement printed in the case on appeal that it contains all the evidence has been stricken out by stipulation. We are only at liberty, therefore, to examine the exceptions. The defendant was not on trial for practicing medicine without a license, or for falsely holding himself out to the world at large as a physician. The court, under objection and exception, permitted three witnesses to testify that defendant had held himself* out to them as a physician, and had administered to them what 'purported to be medicines. It was' not shown that these facts were communicated to plaintiff, or that-he relied'upon them. We think that this evidence was erroneously admitted, and was calculated to influence .the verdict. It is true that a motion was afterwards granted to strike this evidence out, but. the jury were not instructed to disregard it, and it is by no means clear that the part stricken out was so identified that the jury understood that it was withdrawn from their consideration. In order to counteract the effect of the admission of inadmissible evidence by afterwards striking it out, it is necessary that the jury should he very clearly and distinctly informed just what evidence is to be disregarded. We are not sure that they were so informed in the present case.

The judgment appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, McLaughlin, Laughlin and Houghton, JJ. concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  