Opinion
April 21, 1933.
Appeal from Supreme Court of New York County.
James E. Freehill of counsel [ Neil P. Cullom with him on the brief, attorney] for the appellants.
Henry G. Singer, for the respondent Rose Jaffee.
Otto A. Samuels, for the respondent Leon Goodman Co., Inc.
Present — FINCH, P.J., McAVOY, MARTIN, O'MALLEY and TOWNLEY, JJ.
The dismissal of the complaint against the defendant Leon Goodman Co., Inc., was proper and must be affirmed. The acts of the defendant Jaffee were not done in the course of the corporate defendant's business. ( Muller v. Hillenbrand, 227 N.Y. 448.)
The court in its main charge on the burden of proof said: "If * * * there is any doubt in your minds as to any of the essentials which I have indicated to you, then that doubt must be resolved favorably to the defendant and your verdict must be for the defendant." To correct the misstatement of the rule, counsel for plaintiffs requested the court to charge "that the plaintiffs are under an obligation to prove their case only by a fair preponderance of the credible evidence and not beyond a reasonable doubt." This request was refused. The court's refusal to correct the mistake in its main charge by charging as requested imposed on the plaintiffs the burden of establishing their case beyond a reasonable doubt. This error was most prejudicial and probably accounts for the verdict in favor of the defendant Jaffee which was clearly against the weight of the evidence.
The judgments in favor of the defendant Jaffee must be reversed, the actions severed, and a new trial ordered, with costs to appellants to abide the event.
In each case: Judgment in favor of defendant Rose Jaffee reversed, the action severed, and a new trial ordered as to said defendant, with costs to the appellant to abide the event. Judgment in favor of the defendant Leon Goodman Co., Inc., affirmed, with costs to said respondent.