Kohlmann v. City of New York

— The judgment appealed from is unanimously reversed on the facts and on the law, and in the exercise of discretion, and a new trial ordered, with costs to appellant. Trial tactics of plaintiffs’ counsel in the manner and content of his cross-examination, his comments and the expression of his personal views, exceeded the bounds of propriety and evinced a determination to convey to the jury his own characterization and appraisal of the witnesses for the defendant. His conduct appears to have been calculated to influence the jury by considerations which were not legitimately before them, and cannot be dismissed as inadvertent, thoughtless or harmless. Parties to a trial, civil or criminal, have a right to have the case determined on the facts and the law applicable thereto. When misconduct of counsel in interrogation or summation so violates the rights of the other party to the litigation that extraneous matters beyond the proper scope of the trial may have substantially influenced or been determinative of the outcome, such breaches of the rules will not be condoned. (Simpson v. Foundation Co., 201 N. Y. 479; Cherry Creek Nat. Bank v. Fidelity & Cas. Co., 207 App. Div. 787 (on summation): People v. Carborano, 301 N. Y. 39; Loughlin v. Brassil, 187 N. Y. 128.) It is regrettable that despite the apparent strength of the plaintiffs’ case a new trial must be ordered in the interests of justice. Concur — Botein, P. J., M. M. Frank, Valente, McNally and Stevens, JJ.