Smith v. Torrisi

Judgment and order reversed upon the facts, and a new trial granted,' costs to abide the event. At the close of the cross-examination of one of defendant’s witnesses, a woman, apparently disinterested, the plaintiff’s attorney said: “ I am going to ask your Honor to take judicial notice of the fact that this accident happened, not on Sunday, and that these things couldn’t have happened — that it happened on Saturday, which was the 7th, and she could not have left Hartford on a Sunday; and we are going to ask you to take such action as those facts warrant.” To this statement defendant’s attorney objected, and moved for a mistrial. The court thereupon said — apparently to plaintiff’s attorney: “ You call my attention to it on the conclusion of the trial.” When another of defendant’s witnesses was on the stand, the court intervened and cross-examined uhe witness at some *732length. Defendant’s attorney objected to some of the questions asked by the court, and also to the cross-examination by the court. The court said: “ Objection overruled. What do you think I am here for? Don’t you think I am here to assist the jury in learning the facts of the case and eliciting from the witnesses the truth, if it is in them? ” We are of opinion that these with other incidents which occurred during the trial prevented the defendant from obtaining a fair trial. The judgment and order are, therefore, reversed, and a new trial granted, in the interests of justice. Kelly, P. J., Jaycox, Manning, Kapper and Lazansky, JJ., concur.