The sun., 1891-03-26

the article. by touching an electric wire
which had been left swinging for months
from pole In the street; and after donounc-
Ing the neglect Of the New York officials to
have tho wires buried, tho writer concluded
by saying: ut Ia shameful that whore such
pcrils are in question there should DO pro-
Crastlnation, shiftlessness. and incompe-
tcncy which would not be tolerated In a pri-
vate business"
II was not to be expected TINT the council
for the railroad company would remain quiet
while this was going on. AS soon as his
opponent began the reading Of the article
lie objected and asked the presiding Judge
TO direct him to stop. This the Court do
cllned 10 do, and the counsel for the plaintiff
proceeded to read the article through.
although the Judge reminded him that his
opponent had excepted to his action in 30
doing, and thus warned him that he ran tho
risk Of having the Judgment reversed on
this account.
The opinion OF the Court OF Appeals is
written by Judge CHARLES ANDREWS OF
Syracuse and concurred In by all his asso-
clates In tho First Division. 1t does not at
tempt to restrict tho privileges OF counsel SO
far as any matter really relevant to the case
is concerned. 1t declares that this privilege
Is most important to preserve. and instead
OF being narrowed by any close construc-
ton. should be interpreted In the largest
sense. Tho right of counsel to address
tho Jury upon tho facts" says tho
Court of Appeals. "is Of public ns
we'll as private consequence for its eS-
erclse has always proved one Of the most
effective agencies In the ascertainment
of truth by jures IN courts OF JUS
tice, and this concerns tho very highest
interests of tho State" Tho Court en,-
phatically declares, however that the priv
lego OF counsel does not justify him In in
Producing into his argument matters wholly
immaterial and irrelevant to the issue to DO
decided. and which the jury have no right
to consider In reaching verdict. As 10
what was done In this particular case, the
language CT the Court Is Us follows:
"The realing by counsel in summing up to the Jury
Of tho newspaper article. 'On'y . Boy Psidier' WAS
wholly irrelevant 10 the oass 1t could have been read
FOR purpose except to inhame tho Jury against
porons and to lead them under the innnsSs, OF lust
anger excited by tho Incident narrated Sa~. liberal
damages 10 the plaintiff ip the case vial The
fussl Of the Court to Interfere under the
Of this legal error. rhs privilege of counsel
aud the largest ihersity In constituting did not au
horize such totally irrelevant and prsjudiciAl pro-
esed.ag."
Wo observe that our esteemed contom-
porary. the Brooklyn Eagle, finds fault with
this decision, and. indeed, goes so far as to
term 1t nonsense, because the Court OF Ap.
peals, in ono part OF its opinion, says: I'VE
perceive no valid ground for reversing the
Judgment on Its merits, and we should az
firm 1t except for the ruling OF the Court
made during the summing up to the jury"
From this our contemporary argues that, II
the verdict was valid on its merits then It
was meritorious verdict. which. it says, Is
a verdict that should bs affirmed and not
set aside. This view Is based upon q mis-
understanding OF the technical Specification
Of the phrase "on the merits" as used
among lawyers. The meaning OF whatJudge
ANDREWS said was that the Court OF Appeals
would be satisfied with tho manner in which
the case had been disposed OF In the trial
court upon tho facts which were proved
there, II it had not been for the error OF law
in permitting counsel improperly to infame
the passions OF the jury. This error OF law
being ono which might wol have induced
VIC Jhlt " uNult Viz pihiAllil u ldlhcI 6lllU
by way OF damages than they would other
wise have given him, it was only just and
right to grant new trial, In which the
question OF the amount to be awarded to
the plaintiff should DO passed upon by
Jury unintiuenced by any such considerations
uswere presented by the Objectionable article
which was read by the plaintiffs counsel
al the first trial.
This action, SO far from being nonsensical.
seems to US the only ono consistent with
common sense and common fairness. TO
ask n Brooklyn jury to give largo damages
against Brooklyn railroad corporation be-
cause New York peddler had been killed
by contact with a hanging electric wire in
this city. was about as reasonable ns 1t would
ba to ask Brooklyn jury to find large
verdict for libel against reputable news
paper like the Brooklyn Eagle because some
paper in Buffalo was in tho habit OF publish
ing outrageous libes against the residents
OF that city.