Friedman v. Equitable Life Assurance Society of the United States , 268 A.D. 969 ( 1944 )

Per Curiam.

The sole issue that should have been presented and tried in this action was whether plaintiff during the period in question was wholly disabled by disease from engaging in any occupation. Nevertheless, in selecting the jury, in the opening and during trial repeated reference was made to the pleadings and judgment against defendant in a prior action and to a prior jury’s alleged findings in that action, all of which were irrelevant to the issue litigated on this trial and prejudicial to defendant. Defendant made timely objections which were overruled by the trial court.

On all the facts disclosed the trial court erred in permitting the amendment of the complaint and directing the trial to proceed after- much of the damage had already been done, and also erred in later admitting in evidence the prior judgment against defendant procured on an issue essentially different from that properly raised at this trial.

We express no opinion on the merits of the relevant issue which was a jury risk but we cannot say on this record that the members of the jury were not influenced by the irrelevant and prejudicial matters improperly brought to their attention by plaintiff.

The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.