Rubinstein v. Pennsylvania Railroad , 201 N.Y.S.2d 279 ( 1960 )

Judgment appealed from is reversed on the law, upon the facts and in the exercise of discretion and a new trial ordered, with costs to appellants. Conduct of counsel during the trial added to the confused atmosphere and precluded a trial fair to either plaintiffs or defendants. While the criticism in the main is directed to plaintiffs’ counsel, defendants’ counsel cannot escape entirely this criticism. Trial tactics which appear calculated to influence the jury by considerations which are not legitimately before them, side remarks to the jury on the conduct of opposing counsel, the witnesses, or improper comments on and unfair characterization of testimony as it is given will not be condoned. It is unfortunate that this conduct requires a new trial in the interest of justice. (Kolilmamn v. Gity of New York, 8 A D 2d 598.) Concur — Botein, P. J., Breitel, Stevens and Bergan, JJ.; M. M. Frank, J. deceased. [20 Misc 2d 575.]