Murthey v. Murthey

Full title: ELMORE S. MURTHEY, Respondent, v. ELIZABETH A. MURTHEY, Appellant, and…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 24, 1941

261 App. Div. 991 (N.Y. App. Div. 1941)

Opinion

March 24, 1941.

In a consolidated action, judgment declaring illegal and void the separation agreement, as amended, entered into between the parties, and dismissing on the merits appellant's cause of action (deemed a counterclaim) for instalments due under the separation agreement, as amended, and order granting consolidation of the actions affirmed, without costs. No opinion.

Carswell, Johnston and Adel, JJ., concur;

Lazansky, P.J., concurs for affirmance of order but as to the judgment he dissents and votesPage 992 to reverse and to grant a new trial on the ground (1) that the determinations on the facts were against the weight of the evidence; and on the further ground (2) that it was error to refuse to charge, as requested by appellant, on the failure of respondent to call as a witness the attorney who represented him in the transaction which is the subject of the litigation, but did not participate in the alleged illegal part thereof, with the following memorandum:

In view of the relationship between attorney and client, the confidences of which continue, the sharp controversy on a most serious issue, and that respondent was his sole witness in respect thereof, the requested charge should have been made. Out of a maze of opinions and texts, the following in this State justify the request: People v. Hovey ( 92 N.Y. 554, 560); Milliman v. Rochester R. Co. ( 3 App. Div. 109, 111); Carpenter v. Pennsylvania R.R. Co. (13 id. 328, 330); Cushman v. DeMallie (46 id. 379, 381); Kirkpatrick v. Allemannia Fire Ins. Co. (102 id. 327, 329; affd., 184 N.Y. 546); Group v. Szenher ( 260 App. Div. 308, 309); People ex rel. Woronoff v. Mallon ( 222 N.Y. 456, 465); Galbraith v. Busch (267 id. 230, 233; dissenting opinion of Crane, Ch. J., at pp. 236, 237). To the same effect are Gordon v. People ( 33 N.Y. 501, 508); Sugarman v. Brengel ( 68 App. Div. 377, 380); Ferrari v. Interurban Street R. Co. (118 id. 155, 159). Reehil v. Fraas (129 id. 563; see foot p. 565); Perlman v. Shanck (192 id. 179; see top p. 185), and Milio v. Railway Motor Trucking Co. (257 id. 640) are not to the contrary. In some of the foregoing cases Schwier v. N.Y.C. H.R.R.R. Co. ( 90 N.Y. 558) is cited, but its cryptic rule at page 564 is really not followed. It was a negligence action involving the inferences to be drawn when a defendant failed to call its only witness of an incident in issue. It is doubtful, indeed, whether it would be followed today. ( Galbraith v. Busch, supra, at p. 233.) Hagarty, J., concurs for affirmance of the order; and also concurs with Lazansky, P.J., for reversal of the judgment and to grant a new trial on the ground first stated.