SUPREME COURT.

#### William M. Neuman, respondent, agt. George H. Goddard, appellant.

*General*Term, *First*Department,

March, 1874.

*Jurisdiction in action for personal injury committed in another state—incompetent evidence which will authorize a new trial.*

It is now settled that the courts of this state will entertain jurisdiction of actions for personal injuries committed abroad, when both or either of the parties are citizens of the United States.

Where on the trial incompetent evidence is admitted, after objection, which might afiect the minds of the jury, the subsequent direction of the judge, in his charge to the jury, that such evidence be disregarded by them, does not cure the error in first receiving it.

Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff.

*James C.*Carter, for appellant.

*Joseph*Larocque, for respondent.

Lawrence, *J.*

— The plaintiff alleges that the defendant, with others, acting as a vigilance committee, in the city of Camden, in Arkansas, on the 14th day of May, 1861, with force of arms, entered the store of the plaintiff and ejected him therefrom, and seized and carried away the stock of goods in the store, with all the books, papers and private effects of the • plaintiff, and converted and disposed of the same to their own use, and thereby broke up and destroyed *364the plaintiff’s business; and damages are claimed for the injury resulting to the plaintiff.

On the trial it was contended by the counsel for the defendant:

First. That this court has no jurisdiction, so far as the action is to be regarded as brought to recover for the personal injuries sustained by the plaintiff; and,

Secondly. That the defendant having been subsequently discharged as a bankrupt, under the bankrupt law of the United States, such .discharge is a bar to this action.

As I have come to the conclusion that a new trial must be granted upon two of the objections and exceptions taken by the defendant’s counsel, it will be unnecessary to consider the effect of the discharge in bankruptcy; and as to the question of jurisdiction the case of *De Witt*agt. *Buchanan*(54 *Barb.,*32) seems to be conclusive.

In that case justice Jambs denies the doctrine laid down by chief judge Daly in *Molony*agt. *Dows*(8 *Abbt.,*316), and says: “It is now' settled that the courts of this state will entertain jurisdiction of actions for personal injuries committed abroad, when both or either of the parties are citizens of the United States.”

' Upon the trial the plaintiff was allowed to testify, under the objection and exception of the defendant’s counsel, to threats made by defendant, of personal injury or violence to the plaintiff, after the ejection of the plaintiff from his store, and after the seizure and conversion of the plaintiff’s goods.

He was also permitted to testify, under like objection and exception, that the goods taken from his store, before the close of the war, enhanced in value from 100 to 200 per cent in gold.

The justice before whom the cause was tried, in his charge to the jury, upon the request of the defendant’s counsel, directed the jury not to take any of this evidence into consideration, in fixing the amount of damages sustained by the plaintiff.

*365I think that the evidence was incompetent, and that the subsequent direction to the jury to disregard it does not cure the error in first receiving it.

The threats made by the defendant, after the trespass and wrongful acts averred in the complaint had occurred, were not a part of the *res*gestee, but threats to commit separate and independent torts. They constituted’ no part of the cause of' action stated in the complaint; and, as they were made after that cause of action had arisen, I do not see how such threats tended to show the animus of the defendant toward the plaintiff in committing the acts referred to in the complaint.

The evidence as to the rise in the value of the goods, seems to me to have been equally irrelevant and incompetent.

It was assumed that the plaintiff would have remained in Camden throughout the war, and that he would have continued to be the owner of the goods' until the great increase in values had taken place.

The rule which should govern in this case is well stated by judge Grover in *Erhen*agt. *Loullaid*(19 N. *Y.,*302, 303). There the justice,' in charging the jury, directed it to disregard certain evidence which he had admitted. Judge Grover says:

*“*The plaintiff’s counsel insists that this, if error, was cured by the charge. When illegal evidence, properly excepted to, has been received during a trial, it must be shown that the verdict was not affected by it, or the judgment will be reversed. If the evidence may have affected the verdict, the error cannot be disregarded. The rights of the parties can only be preserved by adhering to this rule. It would be in vain to observe the rules prescribed by law to secure an impartial jury, if their minds are to be subjected to the influence of illegal evidence after they are empaneled. It does not follow that impressions thus obtained will have no effect, although the judge directs them to disregard the evidence.” *366See also *Travers*agt. *Eighth Avenue Railroad Co.*(3 Keyes, 499).

In this case it cannot he said that it appears that the evidence objected to did not affect the minds of the jury in arriving at their verdict.

On the contrary, I think that it is quite apparent that the evidence may have affected and did affect their,minds, in reaching a conclusion. The case is one which, in its nature appeals very strongly to the sympathies and passions; and the evidence was calculated to inflame and excite the sympathies of the jury.

The verdict rendered was- large in amount, and as the evidence may have enhanced the verdict, I do not think that we can disregard the error.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J., and Daniels, J.,. concurred.