
    Margaret Meyer, Respondent, v. Louis Minsky, Appellant.
    First Department,
    November 13, 1908.
    Trial — failure of defendant present in court to deny adverse testimony — erroneous charge.
    While the fact that a defendant in an action, being present in court, does not take the stand to rebut testimony as to facts reflecting upon him and necessarily within his personal knowledge, entitles the jury to infer that his testimony would not be favorable to himself, it is error to charge that the' jury may find that if put upon the stand he would testify in favor of the plaihtifE, for such charge in substance states that the silence is a positive admission of the plaintiff's testimony.
    Appeal by the defendant, Louis Minsky, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of November, 1907, upon the verdict of a jury for $1,972.50, and also from an order entered in said clerk’s office on the 4th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Matthias Radin, for the appellant.
    
      John J. O' Connell, for the respondent.
   Scott, J.:

The. defendant appeals from a judgment in favor of plaintiff entered upon a verdict, and from-an order granting a new trial.

The action is brought to recover damages suffered by plaintiff in consequence of certain false and fraudulent representations alleged to have been znade by defendant whereby plaintiff was induced to deposit a sum of znoney in the Federal Bank when it was insolvent and upon the eve of bankruptcy. The plaintiff was the sole witness as to the representations. Her cross-examination was directed to showing that she had testified, somewhat diffez'ently upon other, occasions. The defendant was in court during the trial but did not testify. At the request of the plaintiff the court charged the jury “ that in view of the presence of the defendant Minsky in court and the failtire to put him on .the witness stand the jury may find from such presence and such failure to put him on the stand, that if lie' were put upon the stand he would- testify in favor of the plaintiff.” This was stating, the rule much too strongly. Undoubtedly the fact that a party to the action who is present in court declines to take the stand to rebut evidence of facts reflecting upon him and necessarily within his personal knowledge is one which the jury are. entitled to take into consideration, andt from which they may infer that his testimony would not be favorable to himself. (People v. Hovey, 92 N. Y. 554, 560; People v. Sharp, 107 id. 427,465.) The burden of proof, however, if it Originally rested' upon the opposite party still remains there, and the silence of the party refusing to take the stand is not to be accepted as affirmative corroborative evidence, in favor of his opponent. Under the chaige quoted above, the jury were in effect instructed that the defendant’s ,silence constituted a positive admission of the truth of the story told by the plaintiff; whereas, the most that can be said of it was that it entitled the jury to infer that, if called,, he would not testify favorably to himself.

;The distinction is a substantial one, and in view of plaintiff’s testimony upon cross-examination, We cannot say that the erroneous charge did not influence the verdict.

The judgment and-order must be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Judgment and order reversed* new trial ordered, costs to appellant to abide-event. •  