The opinion
Gray, J.
I concur with my brother Hiscock in the conclusion which he reaches that there should be a new trial of this action; but it is upon the sole ground that it was error to admit in evidence the proceeding instituted by the superintendent of the building department against the plaintiff and its lessor. The proceeding was personal as against them and the error in making it a part of the plaintiff’s case cannot be said to have been without prejudice to the defendant; inasmuch as the proceeding had determined a fact of serious importance. The evidence was not necessary to make out a case under the contract sued upon. I think that the defendant is entitled to a new trial, in which the case may be submitted to the jury without this prejudicial evidence.
Cullen, Ch. J., Vann, Chase and Collin, JJ., concur with Hiscock, J.; Gray, J., concurs in result in memorandum, with whom Willard Bartlett, J., concurs.
Judgment reversed, etc.