Travers v. Lawlor

Appellate Division of the Supreme Court of New York

Travers v. Lawlor

245 A.D. 32, 280 N.Y.S. 575, 1935 N.Y. App. Div. LEXIS 10211

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 14, 1935

StatusPublished

This text of 245 A.D. 32 (Travers v. Lawlor) 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

Travers v. Lawlor, 245 A.D. 32, 280 N.Y.S. 575, 1935 N.Y. App. Div. LEXIS 10211 (N.Y. Ct. App. 1935).

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Opinion

Per Curiam.

There was prejudicial error on the trial of this action in admitting in evidence a letter left by plaintiff’s deceased wife. The letter shows that the parties were living on affectionate terms up to the time of the wife’s suicide. It also makes charges against the defendant to which the wife, had she been alive, would not have been allowed to testify. (See Civ. Prac. Act, § 349, and Hanor v. Housel, 128 App. Div. 801.) The letter was received in evidence on the theory that the contents had been admitted by the defendant’s failure to make a statement in relation to its contents when it was originally shown him shortly after the death of the plaintiff’s wife. In the first place, defendant was not asked to make a statement in respect to the letter. In the second place, had he been asked, he was under no duty to make any statement. Those parts of the letter bearing on the relations between plaintiff [33]*33and his deceased wife may be competent to establish such relations but under no conditions should the jury be allowed to see or hear of anything else in the letter except those passages, or to hear any comments on the charges contained therein.

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

Present — Martin, P. J., Merrell, Townley, Glennon and Untermyer, JJ.

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

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Per Curiam.

There was prejudicial error on the trial of this action in admitting in evidence a letter left by plaintiff’s deceased wife. The letter shows that the parties were living on affectionate terms up to the time of the wife’s suicide. It also makes charges against the defendant to which the wife, had she been alive, would not have been allowed to testify. (See Civ. Prac. Act, § 349, and Hanor v. Housel, 128 App. Div. 801.) The letter was received in evidence on the theory that the contents had been admitted by the defendant’s failure to make a statement in relation to its contents when it was originally shown him shortly after the death of the plaintiff’s wife. In the first place, defendant was not asked to make a statement in respect to the letter. In the second place, had he been asked, he was under no duty to make any statement. Those parts of the letter bearing on the relations between plaintiff [33]*33and his deceased wife may be competent to establish such relations but under no conditions should the jury be allowed to see or hear of anything else in the letter except those passages, or to hear any comments on the charges contained therein.

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

Present — Martin, P. J., Merrell, Townley, Glennon and Untermyer, JJ.

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

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Bluebook (online)

245 A.D. 32, 280 N.Y.S. 575, 1935 N.Y. App. Div. LEXIS 10211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travers-v-lawlor-nyappdiv-1935.

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