
    Karol Borman, Respondent, v. Henry Phipps Estates (a Domestic Corporation), Appellant.
    First Department,
    November 22, 1940.
    
      William L. Shumate of counsel [Andrews, Baird & Shumate, attorneys], for the appellant.
    
      Harold Ira Panken of counsel [Julius S. Moskowitz, attorney], for the respondent.
   Townley, J.

The judgment should be reversed for errors in the charge. The court in effect said that the failure of a person to call witnesses or produce evidence under his control permitted the inference that the evidence would be unfavorable to him. This charge is substantially the same as that in Milio v. Railway Motor Trucking Co. (257 App. Div. 640) where this court in reversing a judgment for the plaintiff said: “ The failure to call a witness within the control of a party may justify giving greater weight to the testimony already in the case, but it never authorizes a jury to speculate as to what the uncalled witness would testify to.”

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

Martin, P. J., and Dore, J., concur; O’Malley and Cohn, JJ., dissent.

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