Mintz v. Wipper

Appellate Terms of the Supreme Court of New York

Mintz v. Wipper

207 Misc. 780, 142 N.Y.S.2d 915, 1955 N.Y. Misc. LEXIS 3583

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 23, 1955

StatusPublished

This text of 207 Misc. 780 (Mintz v. Wipper) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mintz v. Wipper, 207 Misc. 780, 142 N.Y.S.2d 915, 1955 N.Y. Misc. LEXIS 3583 (N.Y. Ct. App. 1955).

Pincite

Opinion

Per Curiam.

It was error for the court to charge the jury, as requested by plaintiff with respect to the inference to be drawn from the unexplained absence of the defendants or any witnesses under their control. <£ In such circumstances the jury have the right to accept the testimony before them which might have been but was not controverted, and to take it most strongly against the party who might have controverted it but failed to do so. The jury may not, however, infer that such witness would, if called, testify unfavorably to the party who failed to call him.” (Raimondo v. Fairchester Bakers, 265 App. Div. 861 ; Perlman v. Shanck, 192 App. Div. 179.) This is a far different thing, however, from instructing the jury that it ££ can infer that .such testimony would not be favorable to the party [781]*781who fails to appear or fails to produce him.” The failure of the defendants to call witnesses does not warrant an inference ‘ ‘ that the non-existent testimony would have been unfavorable to defendant. Regardless of plaintiff’s difficulties, he must prove his own case.” (Milio v. Railway Motor Trucking Co., 257 App. Div. 640, 642.)

The judgment should be unanimously reversed, upon the law and facts, and a new trial granted, with costs to the defendants to abide the event.

Pette, Hart and Di Gtovanna, JJ., concur.

Judgment reversed, etc.

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Per Curiam.

It was error for the court to charge the jury, as requested by plaintiff with respect to the inference to be drawn from the unexplained absence of the defendants or any witnesses under their control. <£ In such circumstances the jury have the right to accept the testimony before them which might have been but was not controverted, and to take it most strongly against the party who might have controverted it but failed to do so. The jury may not, however, infer that such witness would, if called, testify unfavorably to the party who failed to call him.” (Raimondo v. Fairchester Bakers, 265 App. Div. 861 ; Perlman v. Shanck, 192 App. Div. 179.) This is a far different thing, however, from instructing the jury that it ££ can infer that .such testimony would not be favorable to the party [781]*781who fails to appear or fails to produce him.” The failure of the defendants to call witnesses does not warrant an inference ‘ ‘ that the non-existent testimony would have been unfavorable to defendant. Regardless of plaintiff’s difficulties, he must prove his own case.” (Milio v. Railway Motor Trucking Co., 257 App. Div. 640, 642.)

The judgment should be unanimously reversed, upon the law and facts, and a new trial granted, with costs to the defendants to abide the event.

Pette, Hart and Di Gtovanna, JJ., concur.

Judgment reversed, etc.

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Bluebook (online)

207 Misc. 780, 142 N.Y.S.2d 915, 1955 N.Y. Misc. LEXIS 3583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mintz-v-wipper-nyappterm-1955.

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