Chertok v. Effremoff

Per Curiam.

This is an action for malpractice against a dentist and an oral surgeon. The plaintiff has had a verdict against both defendants. The issues of fact were close. The evidence is sufficient to sustain the jury's finding. The judgment is challenged also upon the ground that the conduct of the plaintiff's trial counsel rendered the trial unfair. In New York Central R. Co. v. Johnson (279 U. S.-,-), Mr. Justice Stone writes: “ The State, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence. The public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict uninfluenced by the appeals of counsel to passion or prejudice.” That principle we adopt.

If the conduct of the plaintiff’s attorney alone were before us, we should reverse this judgment. The record discloses, however, that the defendants’ counsel instigated the bickering, vituperation and appeal to passion and prejudice which characterized the conduct of this trial. The first injection of impropriety occurred when the defendants’ counsel, in answer to a request for a stipulation that a sister of the plaintiff would, if called, testify to the same facts which the plaintiff had related, replied with the suggestion that she would tell the same story, “ but verbatim.” The context showed a plain insinuation to the jury that the plaintiff and her sister were testifying by rote. This was followed shortly thereafter by an insulting argumentative question on the cross-examination of an expert as follows: “ You know perfectly well for hire and for money you are down here to do all you can to try to show these two clients of mine guilty of malpractice, aren’t you? ” The defendants’ counsel began a contest of abuse. The plaintiff’s counsel regrettably accepted the challenge and conducted his case with equal disregard for the proprieties of a judicial proceeding. No motion was made to withdraw a juror. Both counsel were content to engage in this unwarranted form of advocacy. Their misconduct should not deprive the plaintiff of relief justified by the evidence.

The judgment appealed from should, therefore, be affirmed, with costs.

Finch, Merrell, O’Malley and Proskauer, JJ., concur; Martin, J., dissents.