
    Henry E. Fox, Appellant, v. Emile Valeille, Respondent.
    (Supreme Court, Appellate Term,
    January, 1909.)
    Instructions — Power of court and necessity—Allusion to failure of party to testify or to produce obtainable testimony.
    Where a witness for defendant was permitted to testify, over objection, that plaintiff had repeatedly subpoenaed him and had him in .court and that he had talked with the plaintiff and the plaintiff’s architect, and it is not shown that the witness, who was asked no questions as to his knowledge of ¡the merits of the case, was in the employment or under the control of the plaintiff or in any way related or more friendly to plaintiff than to defendant, a judgment entered upon a verdict for plaintiff will be reversed where the judge charged the jury: “ You may take into consideration the fact, that if one side has subpoenaed a witness and has failed to call that witness, you can, if he is a witness to a material fact, from that presume that the testimony of that witness would be against the party failing to call or produce that witness.”
    Appeal by the plaintiff from a judgment entered in favor of the defendant upon the verdict of a jury in the City Court of the city of New York and also from an order denying a motion for a new trial.
    Bennett & Cooley (Elmer E. Cooley and Harold Harper, of counsel), for appellant.
    Baker & Hyman (Sol. A. Hyman, of counsel), for respondent.
   Giegerich, J.

Upon the trial the defendant called one Abraham Grossman to the stand and over the plaintiff’s objection was allowed to show that the latter had subpoenaed the witness repeatedly and had him in court. The defendant refrained from asking the witness any question whatever as to his knowledge of the merits of the case, but stopped after showing that the witness had been subpoenaed and that he had talked with the plaintiff and the plaintiff’s architect. The learned trial judge added emphasis to the incident by charging the jury, as follows: “ You may take into consideration the fact, that if one side has subpoenaed a witness and has failed to call that witness, you can, if he is a witness to a material fact, from that presume that the testimony of that witness would be against the party failing to call or produce that witness.”

The jury decided the case against the plaintiff upon a conflict of testimony. In my opinion, the charge so made was erroneous (Bleecker v. Johnson, 69 N. Y. 309; People v. Smith, 113 App. Div. 396), and the error so committed was plainly prejudicial to the plaintiff. He was placed before the jury in the position of one who was withholding testimony from them or who feared to have the truth come out; while in fact, there was no more obligation upon the plaintiff than upon the defendant to place the witness upon the stand and find out what, if anything, he knew of the matters in issue. He was there in court and equally accessible to both sides. It was not shown that he was in the employment or under the control of the plaintiff or in any way related or more friendly to the plaintiff than to the defendant.

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

Hendrick and Ford, JJ., concur.

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