
    Edwin H. Tucker, Respondent, v. Eugene B. Dudley, Appellant.
    Second Department,
    June 29, 1908.
    Practice — trial — charge — disregarding testimony.
    The right of a jury to disregard wholly the testimony of a witness exists only when they find that he has intentionally disregarded the truth-in testifying to material facts. ’
    A charge that if the jrjry find that the defendant or.his witness had “in any manner” misrepresented or tried to evade in any way answering the questions put to them, . the j ury may disregard their entire testimony constitutes reversible error. ' ,
    Exceptions taken severally, each to a specific charge, where there is no doubt ás to what is the subject of each exception, are before the court on appeal.
    
      • Appeal by the defendant, Eugene B. Dudley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of January, 1907, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s , office nunc pro tunc as of the - 23d day of January, 1907. denying the defendant’s motion for a new trial made upon the minutes.
    
      Lorlys Elton Rogers, for the appellant..
    
      Frederick W. Sparks [Jesse Fuller, Jr., with him on the brief], for the respondent.
   Rich, J.:

This action was brought to recover damages from the defendant by the plaintiff for alienation of his wifé’s affections. The issues of fact were closely contested. ' The evidence given by the respective parties is so conflicting and at variance that the learned trial justice felt called upon to say to the jury that if they believed the testimony adduced on the part of the plaintiff, they could not believe the ..testimony adduced on the part of the defendant. The case was, therefore, one peculiarly within the province of the jury to determine.

. The defendant’s case rested upon the evidence mainly of himself and of his witness Mrs. Tucker—:the plaintiff’s wife — which was contradicted in nearly every material respect by the' plaintiff and his witnésses. It was of importance that in submitting the case to the jury the. right of. both parties to have their testimony fairly considered should be preserved. At the request of plaintiff’s counsel, however, the court charged that if the jury found “that Mr. Dudley ” (the defendant) “ has in any manner misrepresented or tried to evade in any way answering the questions put to him ” they might disregard his entire testimony, and the same charge was given as to Mrs. Tucker, to which the defendant duly excepted. This instruction is. not in accordance with the law which does not permit .a jury to, entirely disregard the testimony of a party of witness, which is wholly of partly contradicted by, or at variance with, that ' produced by the other party, unless the facts testified to. are material to the issues and the witness, has willfully or-designedly testified falsely.. The right of a jury to wholly disregard the evidence given by a witness exists only when they find that there has been an intentional disregard of the truth by the witness in testifying to facts material to the issues presented. This rule is so firmly established and has been so rigidly adhered to by the courts that citation of authorities is unnecessary.

In the case at bar the jury were instructed' that if they found that the defendant or his witness had in any manner sworn falsely concerning the questions asked him or her, they were at liberty, and . it was their right, to disregard the entire testimony of the witnesses, and that, if they reached the conclusion that in some wholly immaterial matter either had unintentionally misrepresented or tried to evade, even though unsuccessfully, any question, the jury was not required to give any consideration to any portion of their testimony. We cannot say that the jury did. not follow this erroneous instruction and reject the entire testimony of both the defendant and his witness in arriving at their verdict.

It is argued that under the rule declared in Clark v. N. Y. C. & H. R. R. R. Co. (191 N. Y. 416) the defendant’s exceptions to those portions of the charge are not now before us for review because, as is said, the charge ivas conjunctive and the exceptions were general and do not specify the alleged error. The case cited is riot applicable; the exception there considered followed an objection addressed both to a modification of the charge and to the charging of a request, leaving it uncertain which was the subject of the exception. In the case at bar the exceptions were severally taken, each to a specific charge, and there is no doubt or uncertainty as to what was the subject of each exception. It is also urged that assuming this portion of the charge to be erroneous, it does, not constitute ground for reversal because the defendant was plaintiff’s witness, and by the exclusion of his testimony the defendant could not suffer. The answer to this is that the instruction was not limited to the evidence given by the defendant as a witness for the plaintiff.

The judgment and order must be reversed and a new trial granted, costs to abide then vent.

Woodward, Hooker, Gaynoe and Miller, JJ., concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.  