Rosenberg v. Goldstein

Appellate Terms of the Supreme Court of New York

Rosenberg v. Goldstein

146 N.Y.S. 1009

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 14, 1914

StatusPublished

This text of 146 N.Y.S. 1009 (Rosenberg v. Goldstein) 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.

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Rosenberg v. Goldstein, 146 N.Y.S. 1009 (N.Y. Ct. App. 1914).

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BIJUR, J.

The appellant relies exclusively upon alleged errors in the judge’s charge to the jury.

This was a comparatively simple accident case where a child about 11 years of age was alleged to have been injured by the negligence of defendant’s servant while driving defendant’s wagon south on Suffolk street between Broome and Grand streets.

[1] The learned judge below delivered an extensive charge in the course of which reference was made to many matters quite immaterial to the issues. Thus, for example, the learned judge charged that the defendant was not responsible for the driver’s “mere érror of judgment or miscalculation.” As there was no indication in the evidence, and no claim made by either side, that any error of judgment or miscalculation had been made, nor any fact from which that could be inferred, that charge tended merely to confuse the jury.

[2] The learned judge also charged that the jury might take into consideration the failure to produce on the witness stand a butcher, [1010]*1010whose shop plaintiff had claimed to have been visiting just before the accident, and also failure to produce his books, as having some effect on the plaintiff’s or the defendant’s case. There is not the slightest intimation in the record that the butcher witnessed the accident, and his books, of course, would be quite incompetent as evidence from any point of view. While the learned court did not intimate which side might, in the minds of the jury, be prejudiced by the absence of this alleged testimony, it did permit the jury to speculate on the subject, although it was one entirely outside of their consideration, and not connected with the issues in the case.

These and other errors are adequately presented by a number of exceptions taken by plaintiff’s counsel.

It seems evident to us that the issues were not properly submitted to the jury, and the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

LEHMAN, J., concurs.

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BIJUR, J.

The appellant relies exclusively upon alleged errors in the judge’s charge to the jury.

This was a comparatively simple accident case where a child about 11 years of age was alleged to have been injured by the negligence of defendant’s servant while driving defendant’s wagon south on Suffolk street between Broome and Grand streets.

[1] The learned judge below delivered an extensive charge in the course of which reference was made to many matters quite immaterial to the issues. Thus, for example, the learned judge charged that the defendant was not responsible for the driver’s “mere érror of judgment or miscalculation.” As there was no indication in the evidence, and no claim made by either side, that any error of judgment or miscalculation had been made, nor any fact from which that could be inferred, that charge tended merely to confuse the jury.

[2] The learned judge also charged that the jury might take into consideration the failure to produce on the witness stand a butcher, [1010]*1010whose shop plaintiff had claimed to have been visiting just before the accident, and also failure to produce his books, as having some effect on the plaintiff’s or the defendant’s case. There is not the slightest intimation in the record that the butcher witnessed the accident, and his books, of course, would be quite incompetent as evidence from any point of view. While the learned court did not intimate which side might, in the minds of the jury, be prejudiced by the absence of this alleged testimony, it did permit the jury to speculate on the subject, although it was one entirely outside of their consideration, and not connected with the issues in the case.

These and other errors are adequately presented by a number of exceptions taken by plaintiff’s counsel.

It seems evident to us that the issues were not properly submitted to the jury, and the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

LEHMAN, J., concurs.

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Bluebook (online)

146 N.Y.S. 1009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenberg-v-goldstein-nyappterm-1914.