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Borman v. Henry Phipps Estates

260 A.D. 657, 23 N.Y.S.2d 339, 1940 N.Y. App. Div. LEXIS 4682
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 22, 1940
StatusPublished
Cited by11 cases

This text of 260 A.D. 657 (Borman v. Henry Phipps Estates) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borman v. Henry Phipps Estates, 260 A.D. 657, 23 N.Y.S.2d 339, 1940 N.Y. App. Div. LEXIS 4682 (N.Y. Ct. App. 1940).

Opinion

Townley, J.

The judgment should be reversed for errors in the charge. The court in effect said that the failure of a person to call witnesses or produce evidence under his control permitted the inference that the evidence would be unfavorable to him. This charge is substantially the same as that in Milio v. Railway Motor Trucking Co. (257 App. Div. 640) where this court in reversing a judgment for the plaintiff said: “ The failure to call a witness within the control of a party may justify giving greater weight to the testimony already in the case, but it never authorizes a jury to speculate as to what the uncalled witness would testify to.”

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Martin, P. J., and Dore, J., concur; O’Malley and Cohn, JJ., dissent.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

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Bluebook (online)
260 A.D. 657, 23 N.Y.S.2d 339, 1940 N.Y. App. Div. LEXIS 4682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borman-v-henry-phipps-estates-nyappdiv-1940.