I regret that I cannot concur in the decision of the court in this case. It is presented to us upon a bill of exceptions, and we can*177.not examine the facts because we have not the evidence upon which the verdict was based, and, therefore, we cannot say whether there was sufficient evidence to support it so that it was not caused in some degree at least by illegal evidence, if there was any.
The only questions presented are those arising upon the exceptions, and are purely questions of law.
It appeared that after the injury had been received by the plaintiff he became a lunatic, and his wife, Caroline Stiasny, was appointed a committee of his personal estate. She made an application to the ■county judge of the county of Delaware, of which she and her .husband were residents, for leave to bring an action to recover for the injuries which, as she claimed, resulted in his insanity, and the ■order was granted. It was no part of the cause of action, and it was not in any respect material to any of the questions presented ■upon this trial, but it contained a provision authorizing her to enter into an agreement with an attorney and counselor at law residing in ■this city to prosecute the action upon a contingent fee of one-quarter of the amount recovered.
When Mrs. Stiasny was upon the stand this order was offered and received in evidence against the objection and exception of the plaintiff’s counsel. It was conceded that the order was not material upon the merits, but it was received by the learned justice as bearing upon the question of the good faith with which this action was brought. This was stated in the hearing of the jury. There was nothing in it which tended in the slightest degree to contradict the "testimony of Mrs. Stiasny; her attention was not called to it, and it was offered and could have been offered for no other purpose than that stated by the defendant’s counsel, namely, as bearing upon the ■question of good faith in which the action was brought; and received as it was for that purpose the jury was justified, of course, in considering it as bearing upon that point and in giving weight to it if they saw fit to do so, and, necessarily, if they decided that the ■action was not brought in good faith, in using that fact as bearing upon the merits of the case.
The question of the good faith of the committee was one which was absolutely immaterial to the case. The only question for the jury to consider in deciding the case was the negligence of the *178defendant and the contributory negligence of Dr. Stiasny. When. these questions were passed upon, so far as the jury were concerned, the case was at an end unless they found that the plaintiff was entitled to recover, in which case they had to fix the amount of the' damages, and, therefore, the order was absolutely immaterial as bearing upon any question presented by the merits. That being the cáse, it is the well-settled rule in this State that unless the court can say that the improper evidence does not bear in the slightest degree upon the result, tbe admission of such evidence necessarily requires the reversal of the judgment. (Baird v. Gillett, 47 N. Y. 186 ; Anderson v. Rome, W. & O. R. R. Co., 54 id. 334.) In the case last cited it was said that any illegal evidence received under objection, having a tendency to arouse the prejudices, or warp or influence the judgment of the jurors in any degree, cannot be considered harmless and the error disregarded upon the' appeal. This evidence could have been introduced for no other purpose than to warp the judgment and arouse the prejudices' of the jury, by enabling the counsel for the defendant to argue to them that the attorney for the plaintiff had brought this action upon an agreement for a contingent fee, which every one familiar with trials by jury knows is a matter not at all unlikely to affect the determination of a jury, and which, if possible, is referred to for that purpose. Undoubtedly the evidence was irrelevant upon the issues, but it was not irrelevant upon the case, if it operated, as it wás undoubtedly the purpose that it should operate, to affect the prejudice of the jury. For that reason, it seems to me, that the admission of this evidence was error, and, therefore, I cannot concur in the judgment of the majority of the court.
Hatch, J., concurred.
Judgment and order affirmed, with costs.