
    Joseph Sugarman, Respondent, v. Christian Brengel, Appellant.
    
      Failure to call a material witness able to corroboiate a party — inference therefrom,.
    
    The failure of a party to call a material witness, who would be able to corroborate his evidence in a material respect, may be considered by the jury, and they may infer therefrom that such failure was due to the fact that the witnesses would not give corroborating testimony; no presumption of law to that effect attaches to the omission.
    
      Appeal by the defendant, Christian Brengel, from a judgment of the County Court of Rassau county in favor of the plaintiff, entered in the office of the clerk of the county of Rassau on the 29th day of May, 1901, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 29th day of ■ May, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    This action was commenced in" the court of a justice of the peace .; was tried before the court and a jury and the verdict was rendered in favor of the plaintiff.
    An appeal was taken by the defendant to the County Court and a new trial demanded.
    
      Joseph Stemert, for the appellant.
    
      John F. Brush, for the respondent. '
   Jenks, J.:

The plaintiff recovered a judgment in an action for conversion against a constable who levied on plaintiff’s property on an execution upon a judgment against the wife of the plaintiff. The appellant insists that the trial court erred in certain rulings upon evidence and in certain requests to charge.

The defendant was not permitted to testify whether he had posted a notice of sale after levy or whether he had posted notices in three conspicuous places of the town. He did testify that he had sold the property levied upon at public auction. Even if the testimony was admissible, its rejection was not an error grave enough to warrant a reversal of the judgment. It is further contended that as the prices realized were competent evidence of value, such questions, being preliminary to the proof of prices in open market, were admissible. Suffice it to say that the record does not indicate that the púrpose of the question was preliminary to the offer of such testimony.

The defendant read in evidence a claim filed with the persons who were plaintiffs in the action in which the execution was issued., whereby Mrs. Freedman stated that she was the owner of certain live stock and farm utensils, specifying the same, upon the farm occupied by the plaintiff. The defendant’s counsel asked the learned court to charge that the jury must consider the said claim, and the court answered: I charged on that upon the evidence. I will simply say this, that they must take into consideration all the evidence that has been submitted on that matter.” The. defendant’s counsel excepted and then requested a charge “ that the claim of the plaintiff and Mrs. Freedman to the property in question are inconsistent, and cannot both be true. If the claim of Mrs. Freedman is true, the plaintiff cannot recover.” The court answered, under exception: I decline so to charge; that is testimony for the jury to determine.” I find no error. The action was begun in a Justice’s Court, and the pleadings were oral. The plaintiff complained that on or about February 3, 1900, the defendant converted certain goods and chattels, specifying the same. The execution is dated December 28, 1899 ; the defendant testifies that he went to the farm of the plaintiff," he thought, on December 28, 1899, and made a levy, and that he made a second levy on or about February 1, telling the plaintiff that he had not made money enough out of the first sale to satisfy the execution, and that he would have to make another levy, whereupon plaintiff replied that he had nothing more; that defendant had taken everything he owned. But the written claim of Mrs. Freedman, addressed to the judgment creditor and to this defendant, is dated January 10, 1900, and therein, after alleging her ownership of certain specified chattels, she states “ upon which personal property I have been informed that you have levied under an execution upon a judgment,” thereupon describing the judgment against the wife of the plaintiff. It might, therefore, well be contended that her claim was made as to the chattels seized under the first levy made in December, 1899, and not those levied upon in February, 1900. But the request assumes that the conflicting claims are made to the ownership of the chattels levied upon in February, 1900, which alone were involved in this action.

The appellant also excepted to the refusal of the learned court to charge : “ If the plaintiff was able to produce a witness to corroborate his evidence in a material respect and he fails so to do, the presumption of law is that such witness would not corroborate his testimony.” I think that the learned County Judge Seabuey was right in his ruling. From the facts that an- accessible witness who might in the nature of things corroborate the plaintiff on a material point was not called, the jury were not bound to infer that the wih ness would not corroborate the plaintiff. The jury might consider the failure to call such a witness and their inference might logically follow that the omission was due to the fact that the plaintiff would not be corroborated by the witness, but there is no such presumption which attaches to the mere omission to call a witness who might corroborate. The question is discussed very ably by Allen, J., in Bleecker v. Johnston (69 R. Y. 309). The cases cited by the learned counsel for the appellant may be discriminated. In Hicks v. Nassau Electric R. R. Co. (47 App. Div. 479) the defendant did not call any witness and gave no explanation of its omission, and the court spoke of an omission to call the motofman in relation to the question whether there was any effort made to stop the car. In Gordon v. People (33 N. Y. 501) the prisoner offered no evidence, and the question was as to the ability of the prisoner to show his whereabouts on a certain day and to account for a large sum of money in' his possession. The court said that the absence of evidence, especially when it appeared that it was accessible, created a strong presumption of his guilt and was a circumstance greatly corroborative of the truth of the evidence of the other side. In; Schwier v. N. Y. C. & H. R. R. R. Co. (90 N. Y. 558) the infant plaintiff was injured by a locomotive engine, and the court, in commenting upon the failure to call the engineer, said: If the engineer had not this knowledge, if these inferences were not well founded, they could have been removed by his testimony. It was not given, and while the omission to call the engineer as a witness is not evidence against the defendant of the existence of any fact, it is cause for taking such testimony as is in the case'—mud which, if untrue, he might have contradicted or explained — most strongly against it. (Bleecker v. Johnston, 69 N. Y. 309.) ”

In People v. Hovey (92 N. Y. 554) the People called the wife-of the defendant, who was excluded on the objection of the defendant’s counsel,, and the court held that the jury would have the right to- infer that the evidence would not be favorable to the party who voluntarily excluded her, citing Gordon v. People (supra). In Cushman v. De Mallie (46 App. Div. 379) the court said that the failure to call a witness who might have corroborated the defendant might permit the inference that his testimony would not have been favorable to the defendant. None of the authorities cited sustains, then, the contention of the learned counsel that the failure to call a witness whose testimony may corroborate warrants the presumption that the testimony of the witness would not be corroborative. Were this the law, then a party would be compelled to call every witness, however cumulative his testimony might be, at the peril of a direction to the jury that the presumption was that the testimony of the absent witness would not corroborate him. (See Bleecker v. Johnston, supra; Chase’s Steph. Dig. Law of Ev. 220.)

Judgment and order should be affirmed, with costs. ■

All concurred.

Judgment and order .of the County Court of Nassau county affirmed, with costs.  