(dissenting). I. dissent and vote to reinstate the verdict of the jury. The trial court stated that the verdict was not against the weight of the credible evidence. In the course of his summation plaintiffs’ counsel made an objectionable statement to the jury. The jury was properly instructed and cautioned to disregard it. Decision was reserved on the motion for a mistrial on the ground of prejudice. After a charge to which no exception was taken by the defendant, the jury unanimously found in favor of plaintiff in the sum of $325. The verdict of the jury is supported by the evidence. The trial court, however, was asked to set aside the verdict and to rule on the motion for a mistrial as to which decision had been reserved. The motion was granted. While the statement made by plaintiffs’ counsel in his summation may be said to have been improper, it was, in the main, argumentative in character and should not be considered so prejudicial as to render nugatory the jury’s verdict.
Dore, J. P., Cohn, Callahan and Van Voorhis, JJ., concur in decision; Shientag, J., dissents in opinion.
Determination affirmed, with costs and disbursements. No opinion. [189 Misc. 165, affd. 190 Misc. 989.]