App. Div.]

First Department, December, 1916.

roborated by that of several other witnesses. The defendant's theory of the accident is that the plaintiff stepped out from behind an elevated railroad pillar which rested just inside of the southerly curb of One Hundred and Twenty-fifth street, and about thirteen inches west of the curb line of Park avenue, and walked into the side of the automobile as it was passing that point; and this theory is supported by the testimony of several witnesses and to some extent by the testimony of the plaintiff who admitted on cross-examination that she was struck by the side of the right-hand mudguard. In these circumstances it was absolutely essential to the interests of justice that there should be a fair and impartial trial. One Bower, called for the plaintiff, testified that on the 28th day of October, 1914, he was a physician and surgeon and was connected with the Lebanon Hospital and was its X-ray expert, and that he took an X-ray photograph of the plaintiff's limb alleged to have been injured, and that the photograph showed an injury to the lower end of the fibula, but that he made no physical examination of her. The plate showing the picture was then received in evidence. On cross-examination the attorney for the defendant asked the witness how long he had been doing X-ray work; whereupon the attorney for the plaintiff objected upon the ground that the question was immaterial and irrelevant. The court thereupon, addressing the attorney for the defendant, asked, "Why do you want to spend the time on cross-examination?" to which the attorney for the defendant replied that the witness was called as an expert. Thereupon the court said: "You contest it? I will give you all the time you want, but I will say your methods are creating, in my mind at least, a prejudice against your case." The attorney for the defendant then asked leave to withdraw a juror. The application was denied, and he took an exception, whereupon the court said: "I urge you further to refrain from these petty practices. They create in my mind a sort of repugnance to your methods." The attorney for the defendant expressed regret that the court so viewed his conduct, and informed the court that the defense had no knowledge with respect to the alleged injuries; and to this the court replied: "Here is a man from the hospital and you start in to examine him as to his

First Department, December, 1916.

[Vol. 175. qualifications to take a picture. You are killing time." The attorney for the defendant stated that his purpose in asking the question was not to test the qualification of the witness. He was again admonished by the court that he was killing time, but that he would be given all the time he wanted and might proceed as long as he desired. The attorney then stated that he desired to ask a question or two which he considered he was entitled to ask, and that he thought the remarks of the court were prejudicial to the case of his client, to which the court replied: "Your actions are certainly prejudicial to it. Your client is suffering from these actions." The attorney for the defendant thereupon remarked: "Possibly, but I do not think your Honor has any right to say that;" whereupon the court said: "I give you one more warning that our time is not to be taken up by trivial practices such as you are engaging in." This attitude of the trial court was not warranted by anything which appears in the record. The question which, according to the record, gave rise thereto was one which the attorney for the defendant had a perfect right to ask and to have answered without being criticised therefor by the court. Of course, neither the plaintiff nor her attorney is in any manner responsible for these prejudicial remarks by the court, but still they may have influenced the jury in reaching a determination on the issues submitted to them. It may well have been inferred by the jury that the court intended that they as well as the court ought to be prejudiced against the defendant's case on account of the acts of the defendant's attorney. New trials have frequently been granted where the court unduly criticised the attorney or counsel for one of the parties in the presence of the jury in a manner calculated to prejudice the client's cause of action. (See Kleinert v. Federal Brewing Co., 107 App. Div. 485; Bennett v. Harris, 68 Misc. Rep. 503; People v. Hill, 37 App. Div. 327; Hunt v. Becker, 173 id. 9; Malek v. Delaware, L. & W. R. R. Co., 174 id. 926. See, also, People v. Mayer, 132 App. Div. 646; Bolte v. Third Avenue R. R. Co., 38 id. 234.) The learned trial court endeavored to remove any prejudice the jury might have owing to the controversy between the defendant's attorney and the court by stating in the charge that the object of

App. Div.]

First Department, December 1916.

the court was "to hasten things along; " and that there was no intention to express an opinion with respect to the merits of the action; and that the parties were entitled to have the question of fact decided by the jury. It cannot be said, however, that this corrected the former errors. (See Brooks v. Rochester Railway Co., 156 N. Y. 244; Swan v. Keough, 35 App. Div. 80; People v. Fielding, 158 N. Y. 542; Davison v. Herring, 24 App. Div. 402.) The learned trial court also unduly invaded the province of the jury in instructing them, with respect to the conflict of evidence, that somebody was not telling the truth; and that where a party attempts to obtain evidence favorable to himself whether true or false that creates and should create in the minds of the jury "a doubt as to any good faith or any testimony;" and in instructing the jury to render a fair, deliberate and conscientious verdict in order that "some one here, and people in their situation, may be discouraged from bringing testimony of the kind that has been brought into court here on one side or the other." In these circumstances the jury, it may be, rendered the verdict more for the purpose of rebuking the defendant than on an impartial determination on the facts. The evidence to which these remarks were addressed relates to an incident narrated by a witness for the plaintiff to the effect that the defendant, after informing the witness that he was reimbursing plaintiff for the time she was losing and paying her doctor's bill, and making her various presents of flowers and magazines, asked the witness if it was not a fact that plaintiff stepped out from behind the elevated pillar, which incident defendant denied; and the other instance relates to the testimony of a witness for the plaintiff, given to impeach a witness for the defendant, to the effect that the witness for the defendant admitted that the defendant was going to pay him for testifying. The defendant was not present at that interview and of course he could not deny it; but his witness denied it. If there was any unfavorable inference to be drawn from this testimony it would naturally prejudice the defendant's case, and it could in no manner prejudice the plaintiff's case. There could be no misunderstanding in the minds of the jurors which party the court was criticising.

Third Department, November, 1916.

[Vol. 175.

It follows therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

CLARKE, P. J., SCOTT, SMITH and PAGE, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

HELEN V. LE ROY, Respondent, v. EDWARD C. LE ROY,

Appellant.

Third Department, November 15, 1916.

Husband and wife - divorce - counsel fees.

Appeal from an order allowing counsel fees to the plaintiff in an action for absolute divorce. The moving affidavits examined, and held, that the court was warranted in granting the allowance in that the plaintiff showed reasonable probability of proving the defendant's adultery. An allowance of $400 as counsel fee is excessive, where the defendant is a taxicab chauffeur working for a salary of $12 a week, while the plaintiff, a telephone operator, earns approximately $25 a week, and the amount should be reduced to $200.

APPEAL by the defendant, Edward C. Le Roy, from so much of an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Schenectady on the 12th day of June, 1916, as resettled by an order entered in said clerk's office on the 3d day of July, 1916, as allows the plaintiff a counsel fee of $400.

George L. Ehrhardt, for the appellant.

Naylon & Robinson [Daniel Naylon, Jr., of counsel], for the respondent.

HOWARD, J.:

This is an action for an absolute divorce brought by a wife against her husband. The appeal is by the husband from an allowance to the wife of $400 as counsel fee. The plaintiff also made application for alimony but this was denied. Our inspection of the affidavits leads us to the conclusion that the Special Term was warranted in granting a counsel fee, the charges of

adultery being of such a character that there seems to be reasonable grounds for believing that the plaintiff will be able to offer evidence sufficient to support them.

The amount of the counsel fee, however, seems to us excessive. Defendant is a taxicab chauffeur employed in New York city. The plaintiff swears that the defendant earns $35 a week, although the defendant denies this, and alleges that he earns only $12 a week. The plaintiff alleges that her husband has personal property amounting approximately to $14,000, and real estate worth approximately $6,000. The defendant denies this absolutely and alleges that he has no property whatever except certain clothing and insignificant personal effects. The plaintiff is employed as a telephone oper ator. She does not state her salary, although her husband alleges that she earns in excess of $25 per week.

The Special Term is clothed with a broad discretion in these applications for counsel fee which, ordinarily, will not be disturbed; nevertheless, taking into consideration all that we find in the record, we are of the opinion that, in balancing up the conflicting affidavits against one another, and in considering the probabilities of truth arising out of each, the court gave undue weight to the allegations in the moving papers of the plaintiff. It appears to us that to require this chauffeur to pay a counsel fee of $400 would be unreasonable, burdensome and oppressive. Under all the circumstances we think the order should be modified by reducing the counsel fee to $200, and as so modified affirmed.

Order modified by reducing the counsel fee to $200, and as so modified unanimously affirmed, with ten dollars costs and disbursements.