
    Eleanora McDuffie, Respondent, v. Third Avenue Railway Company, Appellant, and Harry Holtzman, Defendant.
   Judgment reversed upon the law and a new trial granted, costs to appellant to abide the event. We are of opinion that the court erroneously charged the jury at the request of counsel for the plaintiff at folios 397-398. This charge permitted the jury to speculate as to whether the defendant had witnesses that it had failed or neglected to call in the absence of proof in the record that there were such witnesses. The importance of such speculative testimony was also left to the jury. There was no proof in the record that the appellant had under its control any other witnesses to the accident whom it could have called, or any witnesses under its control whom it failed to call. Even if the rule were applicable, it was not correctly charged. (See Perlman v. Shanck, 192 App. Div. 179, 183.) We are of opinion that the statement made by the witness Levy to the plaintiff,. received in evidence over defendant, appellant’s objection, was harmless. Even if the defendant, appellant, had not made the witness its own at the time it recalled Levy, the statement offered in evidence by the plaintiff meant little and was harmless and standing alone would not justify a reversal. Lazansky, P. J., Young, Hagarty and Carswell, JJ., concur; Kapper, J., dissents and votes to affirm upon the ground that the request to charge complained of and upon which the reversal is predicated was innocuous and in no wise affected the result.  