F. E. Summers Coal & Lumber Co. v. Bagshaw

Judgment, and orders, in so far as they deny the motion for a new trial, reversed on the law and the facts and a new trial granted, costs to abide the event. In all other respects the appeals from the orders are dismissed. The verdict is against the weight of the evidence on the question of reliance upon the abstract furnished by defendant at the time the mortgage was taken, it appearing, by the preponderance of credible evidence, that plaintiff had knowledge at that time of the existence of the mortgage. Further, we are of opinion that a new trial is required in the interests of justice because of the conduct of plaintiff’s counsel in persisting in asking questions not competent or proper, for the purpose of exciting the prejudice of the jury. (See Graham v. Graham, 142 App. Div. 131.) Lazansky, P. J., Young, Hagarty and Davis, JJ., concur; Carswell, J., concurs upon the second ground only.