Greenberg v. Shindel ( 1911 )

LEHMAN, J.

The plaintiff sues for the conversion of the machinery and tools used in his business. The defendant Wolf Shindel and David Shindel claim that they had no direct part in the taking of the goods, but simply stood by while the goods were seized and carried away by one Tisimintzer, who claimed to be a partner of plaintiff and equally entitled to the possession of the goods.

When the defendant David Shindel was on the stand, he denied upon cross-examination that at the time of the alleged conversion he had any claim against the plaintiff. [1] It was apparently the plaintiff’s theory that the defendant Shindel did have a claim, and sought to' satisfy it by summarily seizing the plaintiff’s goods. For this purpose he could show by proper questions that on the day after the taking of the goods Shindel started an action in the Municipal Court against the plaintiff for an alleged balance due him of $300, and might, after the proper foundation was laid, introduce in evidence the summons and complaint in that action. [2] The plaintiff, however, went further, and introduced the entire judgment roll, and read to the jury the indorsement by the justice:

“To give judgment in this case I must give credit to the testimony of a confessed perjurer. That I am unwilling to do. Judgment for defendant.”

It is quite evident that the plaintiff’s attorney desired to convey to the jury that a judge believed the defendant to be a confessed perjurer. He deliberately attempted to prejudice them, by bringing to their attention a matter which he must have known was not within the issues, and it was the duty of the trial justice to grant the motion of the defendant made immediately thereafter, for the withdrawal of a juror.

[3] Whether or not the jury was actually prejudiced should not be considered by us, but for the purposes of this appeal we should presume that the plaintiff’s conduct had exactly the effect that it was evidently intended to produce. The verdict is also based upon absolutely insufficient evidence of value.

Judgment should be reversed, and a new trial granted, with costs to appellants to abide the event. All concur.