Opinion
January 5, 1961
Appeal from the Cattaraugus Trial Term.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: In this appeal from a judgment dismissing plaintiff's complaint in a death action, the appellant contends that the unanimous jury verdict was prejudicially influenced by improper questions tending to show that the plaintiff was entitled to workmen's compensation benefits and by statements made by defendants' counsel in summation that the defendant had been exonerated by the Coroner and the Motor Vehicle Department. There is nothing in the record to justify either the questions or the statements in summation. The attempt to show that the plaintiff was entitled to workmen's compensation was improper. ( Johnson v. Gianino, 279 App. Div. 760; Lisanti v. Kenney Co., 225 App. Div. 129, affd. 250 N.Y. 621; Posnick v. Crystal, 181 App. Div. 660.) It was likewise error to state that the Motor Vehicle Department had taken no adverse action. ( Tyron v. Willbank, 234 App. Div. 335; Kopp v. Hoffman, 280 App. Div. 954. ) The improper matter cast upon the defendants the burden of showing that it did not influence the verdict rendered. ( Manigold v. Black Riv. Traction Co., 81 App. Div. 381, 385.) Where counsel propounds a question which he must be assumed to know cannot be properly answered, the error is not cured by the Trial Judge's ruling sustaining an objection thereto. ( Cosselmon v. Dunfee, 172 N.Y. 507.) It was not necessary to move for a mistrial. ( Smith v. Majestic Iron Works, 2 N.Y.2d 544. ) Willfulness is a factor to be considered and is demonstrated by repetition of the error. ( Frahm v. Siegel-Cooper Co., 131 App. Div. 747.) In the present case, it cannot be said that the jury may not have been influenced by the improper matter. The judgment, therefore, should be reversed and a new trial granted.