In the interest of justice the judgment in this case should be reversed because of the conduct of counsel for the plaintiff.
There are numerous instances of improper questions and remarks of counsel, but the recital of a few will suffice to show his attitude during the entire trial.
“ Q. And if he said that the tooth was out at 12 o’clock on *390Sunday, is he mistaken? A. His word is as good as mine or mine is as good as his. Q. That is what you figure on in this case? Don’t you figure that some idiot might believe you? A. I figure that the counselor tells me— Q. Don’t you figure that maybe some idiot might believe you, yes or no? ”
Again, we find at page 593, re-cross-examination by Mr. Schloss: “ Q. Did you ever hear of Dr. Blum? A. Dr. Theodore Blum? Q. Yes. A. He is a personal friend of mine. Q. Is he a good man? A. Yes. Q. The best in the City? A. I don’t make comparisons, but he is a good man. Q. As good as you? A. Better than I. Q. Better than you? A. Yes. Q. Do you know that he was found guilty of malpractice? Mr. Jenkins: I object to that, if your Honor please. Sustained. A. Of course I do know that. Q. So that even good men make mistakes? A. Yes. Q. And so have you made mistakes? A. You bet I have. Mr. Jenkins: I move to strike out of the record the answer with reference to Dr. Blum being penalized. The Court: Yes, strike out the answer. I sustained the objection to the question. Do you make formal motion to strike it from the record and that the jury be instructed to disregard the testimony? Mr. Jenkins: Yes. The Court: Gentlemen of the jury, any reference to Dr. Blum should be eradicated from your mind, gentlemen of the jury, do not consider it at all.”
It is a matter of great importance in the administration of justice that the trial of an action should be free from all unfair conduct and improper remarks and that a verdict should be obtained on the evidence and not through prejudice.
The fact that counsel for the defendants was also guilty of improper conduct does not render less objectionable the conduct of plaintiff’s attorney. It does not right a wrong nor render just an unjust verdict obtained through unfair methods. Such conduct, especially in tort cases, is of too frequent occurrence. These defendants were entitled to a fair trial, irrespective of the conduct of their counsel, which in any event should not be compared with that of plaintiff’s counsel.
In the prevailing opinion, handed down herewith it is said: “ If the conduct of the plaintiff’s attorney alone were before us, we should reverse this judgment. The record discloses, however, that the defendants’ counsel instigated the bickering, vituperation and appeal to passion and prejudice which characterized the conduct of this trial.”
That appears to have been the excuse offered in the case of New York Central R. R. Co. v. Johnson, cited in the prevailing opinion. The court answered that argument, as shown in the headnote, as follows: “ Want of good judgment or good taste, or *391even misconduct, on the part of defendant or his counsel, will not excuse like conduct on the part of opposing counsel.”
Although it is sought to excuse the plaintiff’s attorney because of alleged infractions of the rules by counsel for the defendants, it is apparent from the record that counsel for the defendants was not a match for plaintiff’s attorney in such practices.
In the case referred to in the prevailing opinion the United States Supreme Court in commenting upon the conduct of an attorney emphasized the fact .that a law suit is not purely a private controversy of no importance to the public; that every litigation should be fairly and impartially conducted and that verdicts of juries should be rendered on the issues made by the pleadings and the evidence. It was also very emphatically stated that the court of its own motion should protect suitors in their right to a verdict uninfluenced by the appeals of counsel to passion and prejudice.
The two propositions which are admitted by the prevailing opinion, (1) that the issues are close, and (2) the misconduct of counsel, appear to be conclusive on the question of the defendants’ right to a new trial.
Judgment affirmed, with costs.