Finney v. Veeder

By the Court.^*—Ingalls, J.

The only question involved in this appeal is, w’hether error was committed in allowing the above offer to be given in evidence under the circumstances, in the manner and for the purpose it was introduced. The only legitimate effect under § 371 of the Code, was upon the question of costs', and I do not think it was necessary even to prove it upon the trial to secure the benefit of that provision, as it might have been used upon the adjustment of costs. But assuming that it could properly be proved upon the trial, it does not follow that it was appropriately received upon the trial in the County Court.

It appears from the case that it was used by the defendant for a purpose wholly unauthorized, and well calculated to prejudice the plaintiff’s case. Previous to thedntraduction of the offer, the counsel for the defendant stated to the jury that the offer was made because the plaintiff had no confidence in his case. This statement was objected to by the plaintiff’s counsel, on the ground that there had been no proof on the subject, and if an offer had been made, it could not be proved to the jury. The offer was then given in evidence by the defendant, and read to the jury, under the plaintiff’s objection.

• It is insisted by the defendant’s counsel that it was properly introduced to apprise the jury of its effect upon the question of costs.

If it be assumed that this position is sound, the difficulty yet remains, as the offer was not used for that purpose; neither the court or counsel informed the jury of the proper effect of the offer. .On the other hand, we must assume, from the facts detailed in the case, that an erroneous impression was produced upon the minds of the jury in regard to the object of such offer, which was allowed to remain uncorrected by the court, and probably did influence the jury to the prejudice of the plaintiff.. It is said by the defendant’s counsel that as the verdict was for the defendant, it is apparent that no injury resulted from the introduction of the otter, as it could only affect the amount of damages in case the plaintiff prevailed in the action.

I do not think we should thus assume, as it is impossible to calculate how far the jury might have been influenced by the improper use of such evidence. An error can only be disregarded where it affirmatively appears that no possible injury could arise to the party complaining (Worrall v. Parmelee, 1 N. Y. [1 Comst ], 519).

I am, therefore, of opinion that judgment must be reversed, and a new trial had in the County Court, with costs to abide the event.

* Present, Hogeboom, Miller and Ingalls, J.J.