
    Dorothea Werr, Respondent, v. Michael Kohles, Appellant.
    
      ■Change that the jury may consider the non-production of a paper in the possession of the plaintiff’s attorney, which would explain the transaction at issue — it is proper although such paper is in court and accessible.
    
    In an action to recovera sum of money which the plaintiff claimed to have loaned to the defendant, the principal issues litigated were as to whether the money in question was loaned to the defendant or to one Sherlock, for whom the ■defendant claimed he had acted as agent, and as to the time when a certain payment, which was relied upon to take the case out of the Statute of Limitations, had been made.
    'This payment was made by the defendant to the plaintiff’s daughter, and, at the time of making it, he presented to, and left with, her, for the signature of the plaintiff, a receipt for the money in question. The daughter,, who gave important evidence for the plaintiff as to the date of the payment, admitted that she fixed the date of such payment largely by reference to ihe receipt. The receipt was in court in the possession of the plaintiff’s attorneys, but they did-not place it in evidence.
    ’The defendant asked the court to charge that the jury might “take into consideration the fact of the non-production of this alleged receipt, referred to by Mrs. Young in her testimony, in determining what the original transaction was and where the truth in this matter lies.”
    The court declined to charge as requested “because it appears that this paper is here in court and would be accessible.”
    
      Meld, that the refusal to charge as requested constituted an error requiring a new trial.
    Appeal by the defendant, Michael Kohles, from a judgment of 'the County Court of Onondaga county in favor of the plaintiff, ■entered in the office of the clerk of the county of Onondaga on the "Ttli day of February, 1903, affirming a judgment of the Municipal -Court of the city of Syracuse, entered on the 10th day of September, 1902, and also affirming an order of said Municipal Court, '■entered in the office of the clerk of said court on the 29th day of ;September, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Ernest I. Edgcomb, for the appellant.
    
      J. J. Kennelly, for the respondent. .
   Hiscock, J. :

Plaintiff, by her complaint, set forth two alleged causes of action against defendant. The first was against him as principal debtor upon a loan of $400, alleged to have been made May 27,1895, payable with interest one year after date, and wholly unpaid at the time of the commencement of the action, except for the sum of $24 paid on or about May 27, 1896. The second alleged cause of action was against him as an indorser with one Zett upon a promissory note for said amount of money, dated upon the day above mentioned, and made by one Sherlock and payable one year after date. Concededly, both causes of action relate to tile same transaction and loan of the same sum of money.

The case has been twice tried and has been before this court upon a prior occasion upon appeal by the present appellant. Upon the first trial plaintiff secured a recovery upon her alleged cause of action against defendant as indorser of the note made by Mr. Sherlock. It appeared, however, upon the trial that the note was never properly protested against defendant and this court held that there was no sufficient evidence of waiver of such protest by him as would sustain the recovery.

Upon the present trial plaintiff has abandoned her theory of seeking to hold defendant as indorser and has adopted the other cause of •action set forth in her complaint that defendant was the real and principal debtor in the "transactions involved and that the loan was made to him. ■ This claim was vigorously disputed by appellant, who claims that in all of the transactions had by him with plaintiff he simply acted as an agent for Sherlock, who was the real debtor and to whom the money was actually advanced and loaned. Upon this particular question the jury has found, as it undoubtedly might upon the evidence, that plaintiff was right in her claim.

Still another issue was presented upon the trial as to whether the loan or note had not become barred by the Statute of Limitations before this action was commenced. The solution of this question was dependent upon the date of a certain payment of twenty-four dollars made upon the indebtedness. The action was commenced July 4, 1902. The loan and note were "made May 27, 1895, payable ■one year after date. In her complaint plaintiff alleged that the payment in question was made May 27, 1896. Upon the first trial of the case she presented evidence to the effect that the payment was made in the fore part of June, the exact date not being specified. Upon the second trial the evidence' presented, by her was to the effect that said payment was made in July, 1896. The importance of' properly ascertaining which date is correct is very apparent.

The payment was made by defendant to plaintiff’s daughter, and. at the time of making it he presented to and left with her for the. signature of her mother a receipt for the money in question. Said daughter, who gave the important evidence for plaintiff as to the. date of payment, admitted that she fixed such date largely by reference tó the receipt.

It may be naturally assumed that said paper, if produced upon the trial, would have thrown much light upon the two sharply defined issues raised as to the identity of the person to whom the loan was. made and as to the time of the payment thereon. We must assume that said paper would naturally indicate from and on account of" whom the payment was received and thereby disclose whether the obligor was Sherlock, as claimed by defendant, or Kohles, as claimed by respondent. It would also quite inevitably indicate the date of' payment and thus throw much light upon this point about which, plaintiff’s evidence has wavered with considerable uncertainty and. readiness as seemed best adapted to the exigencies of her case. It. appeared upon the trial that said paper had never been delivered back to the defendant, but was in court in the possession of plaintiff’s attorneys, who, despite all the considerations which must have-suggested its production if containing evidence in plaintiff’s favor,, did not see fit to'produce it. Under these circumstances, appellant’s, counsel, at the close of the case, requested the judge of the Municipal Court to charge that the jury might “ take into consideration the fact of the non-production of this alleged receipt, referred to by Mrs. Young in her testimony, in determining what the original, transaction was and where the truth in this matter lies.” . This the learned judge declined to do, “because it appears that this paper is-here in court and would be accessible,” and to which ruling exception was duly taken.

We think the refusal to charge as requested was error for 'which the judgment appealed from should be reversed.

It is a well-settled rule that under certain conditions a jury in. -passing upon a disputed issue of fact may take into account the -failure of a party to produce evidence under his control and which, if he is seeking to maintain the truth, would presumptively be in his favor and corroborate him. (Kenyon v. Kenyon, 88 Hun, 211 ; Milliman v. Rochester Railway Co., 3 App. Div. 109 ; Carpenter v. Penn. R. R. Co., 13 id. 328.)

We think that the facts disclosed in this case brought the receipt mentioned within the rule stated, and that.defendant’s counsel was -entitled to have the jury charged as requested. He did not transgress the limits of the rule adverted to by asking to have it charged that the jury must take into unfavorable account the non-production •of the receipt by plaintiff. Upon the other hand, his request was -well within the limits in simply asking to have the jury charged that they might take into account such non-production.

We do not think that the answer suggested by the court to this Tequest met the rule or satisfied defendant’s rights. The question was not whether defendant might not have secured possession of "this receipt. The query was whether the jury might not draw unfavorable inferences from the failure of plaintiff to voluntarily produce that which was under her control and which if so produced would doubtless have thrown m.uch light upon the relations of these parties in regard to the transaction involved.

For the reasons stated we think the judgments appealed from must be reversed and a new trial granted.

Various other reasons have been suggested by the appellant why plaintiff should not be allowed to recover in this case. Inasmuch, however, as a new trial must be had which probably will result in the production of new evidence, we prefer at this time not to pass upon such other questions.

All concurred.

Judgment of County Court and judgment and order of Municipal Court reversed upon questions of law only, the facts having been examined and no error found therein, and a new trial ordered in Municipal Court, with costs to the appellant to abide the event. The form of the order to be settled by and before Mr. Justice Hiscook upon two days’ notice.  