I concur in the result of this opinion. It seems to me that an error in the admission of the testimony is in no way cured-by a direction to the jury to disregard it when the court comes to charge them. The jury have a right to consider all the evidence which is in the case, and the only way in which they can be deprived of that right is to strike such evidence from the record. Their oath requires them to find a verdict according to the evidence, and that means the evidence which is before them and which is contained in the record, and this right cannot be taken away from them by direction to disregard certain evidence without striking it from the record. It seems to me that this rule has been so repeatedly recognized since the case of Erben v. Lorillard (19 N. Y. 299) that it has become almost a maxim of the law.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.