112 N.Y.S. 860 | N.Y. App. Div. | 1908
The. defendant appeals from a judgment in favor of plaintiff entered upon a verdict, and from-an order granting a new trial.
The action is brought to recover damages suffered by plaintiff in consequence of certain false and fraudulent representations alleged to have been znade by defendant whereby plaintiff was induced to deposit a sum of znoney in the Federal Bank when it was insolvent and upon the eve of bankruptcy. The plaintiff was the sole witness as to the representations. Her cross-examination was directed to showing that she had testified, somewhat diffez'ently upon other, occasions. The defendant was in court during the trial but did not testify. At the request of the plaintiff the court charged the jury “ that in view of the presence of the defendant Minsky in court
;The distinction is a substantial one, and in view of plaintiff’s testimony upon cross-examination, We cannot say that the erroneous charge did not influence the verdict.
The judgment and-order must be reversed and a new trial granted, with costs to appellant to abide the event.
Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.
Judgment and order reversed* new trial ordered, costs to appellant to abide-event. •