Opinion
December Term, 1896.
William H. Stayton, for the appellant.
Jesse Johnson, for the respondent.
This case now comes before us a second time, and a second time we are compelled to reverse a judgment in favor of the plaintiff. (See Brown v. Barse, 3 App. Div. 257.) The defendant was not present at the trial under review upon this appeal. The plaintiff testified to personal transactions with him which the defendant would naturally have taken the stand to deny, if the defense which he had pleaded was true. In his absence, therefore, his counsel had a right to prove any fact the effect of which was to excuse his failure to attend and give evidence in his own behalf. The non-attendance of an absent defendant who has a personal knowledge of the facts, if any, which constitute his defense, and his consequent failure to testify, may properly be considered by the jury as bearing upon the strength of his case, and, on the other hand, the counsel for such defendant may introduce testimony showing the circumstances which compel, and, it may be, satisfactorily excuse that absence. ( Bleecker v. Johnston, 69 N.Y. 309; Wylde v. Northern R.R. Co. of N.J., 53 id. 156, and see Woodruff v. Hurson, 32 Barb. 564.) This was attempted in the present case by the examination of Mr. William H. Stayton, one of the defendant's attorneys, but he was allowed to say little beyond making the statement that he believed, from telegrams and letters which he had received from Mr. Barse, that his client was then at Niagara Falls. Questions as to why Mr. Barse was not present as a witness in the case; whether he was detained from the trial, and, if so, for what reasons; what were the circumstances which detained him, and whether there was any case pending against Mr. Barse which, in the opinion of the witness as his counsel, required his presence elsewhere, were all objected to by the learned counsel for the plaintiff, and the objections were sustained by the court. Some of these questions were objectionable in form, but not all of them, and it was clearly erroneous to exclude the inquiry "Is Mr. Barse detained, and if so, what are the circumstances which detain him?" There was no objection to the form of this question, but it was objected to only on the ground that it was immaterial and irrelevant. In view of the nature of the controversy and Mr. Barse's personal participation in the matters out of which it arose, we think the testimony sought to be elicited by this question was both material and relevant, and plaintiff's counsel himself immediately afterward emphasized its importance by bringing out the fact, on the cross-examination of Mr. Stayton, that the record showed Mr. Barse to have been present on the previous trial. He thus endeavored to give the plaintiff the advantage of the unfavorable inference which could be drawn against the defendant by reason of his non-attendance on the second trial, after having successfully shut out any explanation of his absence therefrom.
The judgment must be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.