Barbagallo v. Americana Corp.

New York Court of Appeals

Barbagallo v. Americana Corp.

254 N.E.2d 768, 25 N.Y.2d 655, 306 N.Y.S.2d 466, 1969 N.Y. LEXIS 968

CourtNew York Court of Appeals

DecidedNovember 26, 1969

StatusPublished

Cited by10 cases

This text of 254 N.E.2d 768 (Barbagallo v. Americana Corp.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barbagallo v. Americana Corp., 254 N.E.2d 768, 25 N.Y.2d 655, 306 N.Y.S.2d 466, 1969 N.Y. LEXIS 968 (N.Y. 1969).

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Opinion

Memorandum. The exclusion of the telephone conversations was error because they were relevant to establishing the duration and depth of defendant’s alleged fear. The truth of their contents was not the purpose of defendant’s offer. (Ferrara v. Galluchio, 5 N Y 2d 16, 19-20; Eichardson, Evidence [9th ed.], § 211.) It cannot be concluded that, as a matter of law, the jury would not have been influenced by the additional details in assessing defendant’s alleged fear of injury to himself or his family. The request as to the effect of the failure of plaintiff’s wife to testify was improper inform and, therefore, was properly denied (Seligson, Morris & Neuburger v. Fairbanks Whitney Cory., 22 A D 2d 625, 629-631).

Judges Burke, Bergan, Breitel, Jasen and Gibson concur in memorandum; Chief Judge Fuld and Judge Scileppi dissent in part and vote to affirm as to both defendants on the opinion at the Appellate Division.

[657]*657Order modified to the extent of reversing the judgment in favor of plaintiff against defendant Thierer and directing a new trial, with costs to abide the event, and, as so modified, affirmed, with costs to defendant Americana Corp., in a memorandum..

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Memorandum. The exclusion of the telephone conversations was error because they were relevant to establishing the duration and depth of defendant’s alleged fear. The truth of their contents was not the purpose of defendant’s offer. (Ferrara v. Galluchio, 5 N Y 2d 16, 19-20; Eichardson, Evidence [9th ed.], § 211.) It cannot be concluded that, as a matter of law, the jury would not have been influenced by the additional details in assessing defendant’s alleged fear of injury to himself or his family. The request as to the effect of the failure of plaintiff’s wife to testify was improper inform and, therefore, was properly denied (Seligson, Morris & Neuburger v. Fairbanks Whitney Cory., 22 A D 2d 625, 629-631).

Judges Burke, Bergan, Breitel, Jasen and Gibson concur in memorandum; Chief Judge Fuld and Judge Scileppi dissent in part and vote to affirm as to both defendants on the opinion at the Appellate Division.

[657]*657Order modified to the extent of reversing the judgment in favor of plaintiff against defendant Thierer and directing a new trial, with costs to abide the event, and, as so modified, affirmed, with costs to defendant Americana Corp., in a memorandum..

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Bluebook (online)

254 N.E.2d 768, 25 N.Y.2d 655, 306 N.Y.S.2d 466, 1969 N.Y. LEXIS 968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barbagallo-v-americana-corp-ny-1969.

Opinion

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