Opinion
November 13, 1908.
Matthias Radin, for the appellant.
John J. O'Connell, for the respondent.
The defendant appeals from a judgment in favor of plaintiff entered upon a verdict, and from an order granting a new trial.
The action is brought to recover damages suffered by plaintiff in consequence of certain false and fraudulent representations alleged to have been made by defendant whereby plaintiff was induced to deposit a sum of money in the Federal Bank when it was insolvent and upon the eve of bankruptcy. The plaintiff was the sole witness as to the representations. Her cross-examination was directed to showing that she had testified somewhat differently upon other occasions. The defendant was in court during the trial but did not testify. At the request of the plaintiff the court charged the jury "that in view of the presence of the defendant Minsky in court and the failure to put him on the witness stand the jury may find from such presence and such failure to put him on the stand, that if he were put upon the stand he would testify in favor of the plaintiff." This was stating the rule much too strongly. Undoubtedly the fact that a party to the action who is present in court declines to take the stand to rebut evidence of facts reflecting upon him and necessarily within his personal knowledge is one which the jury are entitled to take into consideration, and from which they may infer that his testimony would not be favorable to himself. ( People v. Hovey, 92 N.Y. 554, 560; People v. Sharp, 107 id. 427, 465.) The burden of proof, however, if it originally rested upon the opposite party still remains there, and the silence of the party refusing to take the stand is not to be accepted as affirmative corroborative evidence in favor of his opponent. Under the charge quoted above, the jury were in effect instructed that the defendant's silence constituted a positive admission of the truth of the story told by the plaintiff; whereas, the most that can be said of it was that it entitled the jury to infer that, if called, he would not testify favorably to himself.
The distinction is a substantial one, and in view of plaintiff's testimony upon cross-examination, we cannot say that the erroneous charge did not influence the verdict.
The judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.
PATTERSON, P.J., McLAUGHLIN, LAUGHLIN and HOUGHTON, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.