Murthey v. Murthey

261 A.D. 991 | N.Y. App. Div. | 1941

In a consolidated action, judgment declaring illegal and void the separation agreement, as amended, entered into between the parties, and dismissing on the merits appellant’s cause of action (deemed a counterclaim) for instalments due under the separation agreement, as amended, and order granting consolidation of the actions affirmed, without costs. No opinion. Carswell, Johnston and Adel, JJ., concur; Lazansky, P. J., concurs for affirmance of order but as to the judgment he dissents and votes to reverse and to grant a new trial on the ground (1) that the determinations on the facts were against the weight of the evidence; and on the further ground (2) that it was error to refuse to charge, as requested by appellant, on the failure of respondent to call as a witness the attorney who represented him in the transaction which is the subject of the litigation, but did not participate in the alleged illegal part thereof, with the following memorandum: In view of the relationship between attorney and client, the confidences of which continue, the sharp controversy on a most serious issue, and that respondent was his sole witness in respect thereof, the requested charge should have been made. Out of a maze of opinions and texts, the following in this State justify the request: People v. Hovey (92 N. Y. 554, 560); Milliman v. Rochester R. Co. (3 App. Div. 109, 111); Carpenter v. Pennsylvania R. R. Co. (13 id. 328, 330); Cushman v. DeMallie (46 id. 379, 381); Kirkpatrick v. Allemannia Fire Ins. Co. (102 id. 327, 329; afid., 184 N. Y. 546); Group v. Szenher (260 App. Div. 308, 309); People ex rel. Woronoff v. Mallon (222 N. Y. 456, 465); Galbraith v. Busch (267 id. 230, 233; dissenting opinion of Crane, Ch. J., at pp. 236, 237). To the same effect are Gordon v. People (33 N. Y. 501, 508); Sugarman v. Brengel (68 App. Div. 377, 380); Ferrari v. Interurban Street R. Co. (118 id. 155, 159). Reehil v. Fraas (129 id. 563; see foot p. 565); Perlman v. Shanck (192 id. 179; see top p. 185), and Milio v. Railway Motor Trucking Co. (257 id. 640) are not to the contrary. In some of the foregoing cases Schwier v. N. Y. C. & H. R. R. R. Co. (90 N. Y. 558) is cited, but its cryptic rule at page 564 is really not followed. It was a negligence action involving the inferences to be drawn when a defendant failed to call its only witness of an incident in issue. It is doubtful, indeed, whether it would be followed today. (Galbraith v. Busch, supra, at p. 233.) Hagarty, J., concurs for affirmance of the order; and also concurs with Lazansky, P. J., for reversal of the judgment and to grant a new trial on the ground first stated.