
    PHILIP A. FITZPATRICK, Respondent, v LAUREN C. WOODRUFF, Appellant.
    I. Evidence.
    1. PRESUMPTIONS AGAINST A PARTY NOT PRODUCING EVIDENCE.
    (a) None wise, unless it appears that there is evidence which contradicts or explains the evidence adduced against him, or corroborates his own, and that such evidence is peculiarly within his knowledge or power to produce.
    1. Non-calling a witness. In the case at bar the action was brought to recover the sum which plaintiff had paid defendant, on the sale by the latter to the former of certain bonds. The question was as to the terms on which the bonds were sold. The parties themselves were the chief witnesses on this question. Plaintiff testified that he was induced to buy the bonds by defendant’s promise, to take them back on thirty days’ notice, and return the purchase money, with interest, if he should at any time become dissatisfied with them. The defendant’s evidence was in direct conflict with this, and he also testified that plaintiff bad told him that one Sinclair had advised him to buy the bonds. Sinclair was not called as a witness by either party. It appeared in the evidence that Sinclair had been called as a witness on a former trial of the action, and had then testified that he did not remember having advised plaintiff to buy the bonds.
    Held,
    that defendant was not bound to call Sinclair, nor to give any excuse for not calling him.
    Charge. A charge which in various forms instructed the jury that they were at liberty to draw inferences unfavorable to defendant by reason of the non-calling of Sinclair,
    
      Held, error.
    
    Before Sedgwick, Oh. J., and Speer, J.
    
      Decided June 13, 1881.
    This action was tried below by a jury, and a verdict was rendered for the plaintiff. After verdict defendant made a motion for a new trial on the judge’s minutes, which was denied, and defendant excepted. No order was entered denying the motion, consequently the only appeal taken was from the judgment entered on the verdict.
    In December, 1872, the defendant, hearing that the plaintiff had a small amount of money, invited him to purchase some of the bonds of the Erie & Genesee Valley Railroad Company, and in order to induce him to take them, he promised that at any time the plaintiff became dissatisfied with them he would take them back on thirty days’ notice and return his money with interest. The plaintiff knew nothing of the bonds in question, but, being induced by the promise of the defendant, he took $9,000 worth of bonds, paying 90 cents for them and receiving bonds of the par value of $10,000.
    The bonds were subsequently tendered to defendant and the suit was thereafter brought to recover the purchase price.
    The cause was submitted to the jury upon a conflict of evidence as to the terms and conditions upon which the sale of the bonds was made to the plaintiff. The plaintiff and defendant were the chief witnesses as to the facts litigated, before the jury.
    
      Fithian <& GlarJc, attorneys, and id J. JFitMan, of counsel, for appellant, on the points considered by the court, urged :
    The charge is sought to be sustained upon the authority of Bleecker v. Johnson, 69 N. Y. 309, when an examination of that case shows an entirely different ruling. That case is an authority directly and squarely against the ruling and charge of the judge at circuit, and not for it. That case affirmed only the old and well established common law principle and rule of evidence, viz. : that when two interested parties or witnesses are in direct conflict as to material facts in a case, and it appears that one of such interested parties has within his knowledge, and under his especial control and power to produce, material evidence, oral or written, which ought to, and naturally should, throw light on the direct question at issue, and the party neglect or refuse to produce such evidence, the jury would be warranted in concluding (without explanation) that if such evidence were produced it would make against the party omitting to produce it, and therefore, a 1 ‘ less favorable view ” might be taken of the case of such omitting party. But this case does not come within speaking distance of that rule. Here it was shown affirmatively upon plaintiff’s own showing that Sinclair could swear to nothing whatever in respect to any material question whatever in the case. And this fact was made to appear, not by calling Sinclair, who was alive and within the jurisdiction of the court’s process, but by compelling defendant to give hearsay evidence of what Sinclair had sworn to on a previous trial—thus violating another elementary rule of evidence. And then when the plaintiff had affirmatively and conclusively proven that defendant had not suppressed or withheld any material evidence or omitted to call any material witness peculiarly within his knowledge or control in reference to any issue whatever, material or immaterial, then the court proceeded to charge the jury that they might consider whether a certain collateral question arising on the trial was or not a material question. And if they (the jury) found it to be a material question they might consider and determine whether-a certain witness, if called by defendant, could or would have sworn for or against defendant on the question, although it was affirmatively shown that this same witness had once sworn that he could give no evidence whatever one way or the other on the subject. And then' the jury were told that if they were satisfied tbis witness, if called, would not corroborate the defendant in a matter the witness had once sworn he knew nothing whatever about, the jury would be justified for that reason in “ taking a less favorable view of defendant’s case.” This hardly rises to the dignity of an error in a case of fair doubt—it was a “ comedy of errors.” Of course this charge settled the case. The jury were unable to make the proper discrimination, or extract the mischief from this charge. A verdict for plaintiff was almost a necessary result.
    
      Alexander B. Johnson, attorney, and of counsel, for respondent, on the questions considered by the court, urged :
    The exceptions to the charge are not well taken. They were questions for the jury, and were properly left to the jury (Bleecker v. Johnston, 69 N. Y. 309).
   By the Court.—Speir, J.

No order having been entered denying the motion for a new trial, and the only appeal taken being from the judgment entered on the verdict, the general term will not interfere with the disposition the jury has made of the facts. The judge properly instructed the jury that the burden of proof was upon the plaintiff, and that to entitle him to a verdict the evidence should preponderate in his favor, and when they should come to consider whether the plaintiff had such a preponderance of facts and circumstances as would be satisfactory to their minds, including the probabilities of the transaction, he should charge as he had been requested by the plaintiff’s counsel, and charged as follows: “ It is for you to determine whether the statement of Mr. Woodruff of Mr. Fitzpatrick’s telling him that Mr. Sinclair had advised him to buy these bonds is a material one, and if you so believe, then you are to consider, whether the failure of the defendant to call Mr. Sinclair as a witness, is not such a circumstance as would justify you, in considering that if he were called, his testimony would not corroborate Mr. Woodruff on that point.” “I also further charge you that, if you believe Mr.. Sinclair, if called, would not corroborate Mr. Woodruff’s testimony in that particular, then you will be justified in taking a less favorable view of defendant’s testimony on that point.” “ And so, in considering this question, you are to remember that Mr. Sinclair was called as a witness on defendant’s behalf, on the former trial, to substantiate this point, and that there is no evidence that Mr. Sinclair is not within the jurisdiction of this court and not within the call of its subpoena.” The defendant’s counsel duly excepted to each of the foregoing paragraphs of the charge. On the cross-examination of the defendant the plaintiff’s counsel asked him this question : “Did he (Sinclair) testify on that trial that he had advised Mr. Fitzpatrick to go and purchase these bonds?” The defendant answered, “He said he did not remember.”

By the rule which imposes upon a litigant the obligation which will contradict or explain circumstantial evidence against him, it must appear that there is evidence which would explain or elucidate the matter in dispute, and that it is peculiarly within the knowledge of the party called upon to produce it. How otherwise can it be said that any presumption whatever can be raised against him ? The charge must have been made upon the supposition that the defendant knew that Sinclair was possessed of facts or circumstances which, if he had been called and put on the stand, would not corroborate the defendant, and that the defendant knew what the facts and circumstances were. How the plaintiff had shown by the defendant on cross-examination, under objection by defendant’s counsel, on the point in question that Sinclair said on this former trial that he did not remember' ■that he had advised the plaintiff to go and purchase these bonds. The omission to call a witness who has no other or better knowledge of the matter in dispute than those who are produced and give evidence, is not suspicious entitling the adverse party to any presumption to his prejudice. The plaintiff having proved by the defendant that Sinclair on the former trial had said that he did not remember that he had advised the plaintiff to buy these bonds, no foundation was laid as .to the materiality of the question ; and the' jury could only be misled. It is true the defendant had testified on his direct examination that Fitzpatrick had told him before the former trial, that Sinclair had advised him to purchase those bonds, but upon Sinclair’s examination he said he did not remember. If the question was found by the jury to be a material one, as they were instructed they might, and ■ the defendant failing to call the witness, they might readily believe- that had he been called, his evidence would have been prejudicial to the defendant, although it had been shown by the plaintiff that the witness could give no evidence one way or the other. For this error in the charge the judgment must be reversed and a new trial granted, with costs to abide the event.

Sedgwick, Ch. J., concurred.  