#### Philip C. Steinacher, Respondent, *v.*Sayles-Zahn Company, Appellant.

First Department,

June 16, 1911.

Trial — improper conduct by counsel — appeal.

Proceedings on a trial examined, and *held,*that the conduct of counsel for plaintiff in putting defendant’s trial counsel on the stand and propounding to him improper questions was unjustifiable and' reprehensible and • should be condemned.

Where, however, the trial consumed five days and the.trial judge in the exercise of his discretion determined that the verdict had not been influenced by the matter complained of, and denied a motion to withdraw a juror and to set aside the verdict, the judgment will not be reversed on appeal on that ground alone.

*242Appeal by the defendant, the Sayles-Zahh Company, 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 lYth day of March, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes in an action to recover damages for breach of a written contract of employment.

*Hector M. Hitchings*of counsel *[Hitchings &*Palliser, attorneys], for the appellant.

*Frank E.*' *Carstarphen*of counsel *[Earley .& Carstarphen,*attorneys], for the respondent.

Clarke, J. :

A careful examination of this record has satisfied us that a question of fact was presented as to whether the admitted discharge of the plaintiff .by the defendant was in good faith for justifiable cause, and we find that the verdict is supported by the evidence. The case was submitted to the jury fully and fairly by the learned trial court and we find no reversible error in the exceptions.

One incident of the trial requires comment. At the close' of the plaintiff’s evidence in rebuttal, counsel for the. plaintiff put the trial counsel for the defendant upon the stand and the following is a record of the proceedings: “ Q. It is a fact, is it not, that in your opening address to the jury on behalf of the defendant, you stated that you would introduce as a witness Mr. Richard Webber, and Would show by him that the things which the. plaintiff claimed with respect to his connection with Webber and Company were not so? [Counsel for defendant]: We object to such a statement as irrelevant, incompetent and immaterial. (Objection sustained; exception.) Q. Then. I will ask what you did state with respect to that? [Same objection, ruling and exception.] Q. I will ask 5⁄8 3⁄8 3⁄8 if you caused a subpoena to be issued for Richard Webber? (Same objection, ruling and exception.) Q. I will' ask-if Mr. Richard Webber was in this court room day before yesterday at 3 o’clock, and if after the adjournment of the court you talked *243with him? [Counsel for the defendant]: I make the same obj ection, and I now ask to withdraw a juror, on the ground that counsel has violated the rules of law and evidence in asking these questions. The court: The motion to withdraw a juror is denied. [Counsel for defendant]: I except. The court: And the objection to the question is sustained.”

That the conduct of the counsel for the plaintiff was unjustifiable is obvious; that the objections to the questions asked were properly sustained there can be no question; that the purpose of the counsel propounding them was to create a prejudice which he hoped to be to his advantage is clear. The ordinary plea of excessive zeal in the heat of a hotly contested trial is here unavailing because in many pages of his brief on appeal the offending counsel undertakes to justify his conduct. There is no justification therefor. It was reprehensible, without a shadow of excuse, and we condemn it.

In the face of repeated warnings by this court and the Court of Appeals, some trial counsel continue to imperil the interests of their clients by questions, statements and conduct deliberately calculated and intended solely to excite unfair prejudice. In *Cosselmon*v. *Dunfee*(172 N. Y. 507) the court said: ‘c While the learned trial justice made a proper disposition of the matter, nevertheless the propounding of the question was calculated to convey an improper impression to. the jury. 3⁄8 7⁄8 3⁄8 The practice of asking a question that counsel must be assumed to know cannot be answered is highly reprehensible, and where the trial court or Appellate Division is satisfied that the verdict of the jury has been influenced thereby it should, for that reason, set aside the verdict.”

In *Scott*v. *Barker*(129 App. Div. 241) this courtsaid: “We think counsel should learn that the verdict is not the only thing to obtain in a trial in a court of justice, but that it must be obtained in an orderly and proper manner and that if counsel transcend just and proper bounds, the result obtained by such methods cannot stand.”

But the case at bar took five days to try, and - the trial justice denied the motion to withdraw a juror and also denied the motion to set aside the verdict and grant a new trial. He must, therefore, in the exercise of his discretion have determined thaJ *244the verdict reached by the jury had .not been influenced by the matter complained of. We are not prepared to ¡say that he erred, and on this ground alone reverse the judgment.

The judgment and order'appealed from should he affirmed, with costs and disbursements to the respondent.

INGRAHAM, P.. J., Laughlin, Scott and Milder, JJ.', concurred.

Judgment and order affirmed, with costs.