
    Gustave A. Lack, Respondent, v. Aaron M. Weber, Appellant.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Instructions — Power of court and necessity — As to credibility of witnesses — Witness who has made inconsistent statement or who has testified falsely.
    New trial — Grounds — Rulings and instructions at trial — Instructions — Necessity for showing that error did not influence verdict.
    A charge to a jury that, if they believe that any witness has testified falsely to a material fact, they must disregard the testimony as to that fact and may disregard his entire testimony is erroneous, because of the omission of the word “ knowingly ” or “ willfully.”
    A judgment will be reversed for error in the charge of the trial judge, unless the respondent shows affirmatively that the error could not possibly have influenced the verdict.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered in the City Court of the city of ¡New York, and also from an order denying defendant’s motion for a new trial.
    Franklin Pierce, for appellant.
    H. & J. J. Lesser, for respondent.
   Per Curiam.

This action was brought to recover damages for the breach by the defendant of a contract to employ the plaintiff. The amount of damages suffered by the plaintiff was agreed upon by both parties, and the jury found for the plaintiff. The judgment is attacked for an alleged error in the charge. The portion of the charge in question-is as follows: “ If you believe that any witness who has testified in this case has testified falsely to a material fact in the case, you must disregard the testimony as to that fact; you may disregard his entire testimony.” The above quoted language is a portion of the main charge and the criticism is for the omission of the word “ knowingly ” or “ willfully.” This omission was an error, and an exception was duly taken. The weakness of the appellant’s position lies in the fact that the trial counsel did not clearly point out the error, and indicate specifically to the court the real purpose of his exception. McGinley v. United States Life Ins. Co., 77 N. Y. 495. The record is as follows: “ Defendant’s counsel: I except to that portion of your honor’s charge where you said ‘where any witness has testified falsely as to any particular matter.’ The court: I said as to material fact. Defendant’s counsel: As to°a material fact — The court: That they must disregard his testimony as to that fact; they may disregard his entire testimony. Defendant’s counsel: I except to that.”

It is apparent that the learned trial judge understood that it was the claim of the defendant’s counsel that the charge contained the words falsely as to “ any particular matter,” whereas the words “ material fact ” had properly been used. Counsel should have requested the proper complementary instruction. Liad such a request been refused an exception would clearly have been available. It will be observed that counsel was interrupted by the court and not allowed to complete his statement. This may be treated as some excuse for not making a suitable request to charge, and also for failure to be sufficiently explicit. In the face of the well settled rule that: “Dor error in the charge of the court the judgment must be reversed, unless the prevailing parties show affirmatively that the error could not possibly have influenced the verdict,” under the circumstances disclosed, we think +he judgment should not be affirmed.

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

MacLean, J., concurs in reversal.

Seabury, J. (concurring).

The part of the charge of the court to which the defendant’s counsel took exception was incorrect. The exception being good the appellant is entitled to a reversal of the judgment. Counsel repeated the erroneous part of the charge in the language of the court, and specifically noted his exception to it. This was all that he was required to do to be able to avail himself of his exception. It was not his fault that the learned trial justice misapprehended the point of the objection and interrupted him in his effort to state more clearly the precise fault objected to. I do not think that counsel was required to state the proper complementary instruction. He might well have done so, if the court had permitted it; but he was not required to do it in order to take advantage of the exception he had taken. The dictum contained in Lindheim v. Duys, 11 Misc. Rep. 16, that counsel must request the “ proper complementary instructions ” is contrary to the rule as declared in Goldman v. Abrahams, 9 Daly, 223. In Brickwood’s uSackett on Instruction to Jurors, § 300; it is stated that “ The party does not waive exceptions made to erroneous charges by reason of the fact that no request is made by him for a proper one.” I. think that this is a statement of the correct rule.

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

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