127 N.Y.S. 75 | N.Y. App. Div. | 1911
The plaintiff appeals from a. judgment entered, upon a verdict of a .jury in favor of the defendant. The controversy arises from a dispute as to the location of the boundary lines of certain real property situated in Kings county. Both plaintiff and defendant Own a tract of real property as tenants-in common. Adjoining this tract there is some land which the defendant owns in fee in severalty. She placed a. building on the land, and the controversy arises as to whether- this building was placed on the land she owns in severalty or on the land she owns in common with the plaintiff. It appears from this record that the action has been tried twice. .On the first trial the plaintiff called two survéyors, Voorhees and Murphy, who had made surveys tending to show the true location of the disputed boundary lines. On the second trial he called neither of these witnesses, but instead produced a new witness, one Palmer, likewise a- surveyor, who gave testimony in support of the plaintiff’s claim as to the boundary line. The defendant gave testimony to show that Voorhees and Murphy were in town and available as witnesses if the plaintiff chose to call them. ■ The plaintiff gave testimony that lie’understood-after inquiry that both of these men were absent from town, and would not be present in time for the trial, and that, therefore, he engaged the new witness Palmer to make a survey and. appear to give testimony. He produced the survey made by these witnesses and used at the first trial, and offered in evidence the testimony given at that trial'by both these witnesses. On objection by the defendant these proposed proofs were. excluded. When the case was submitted to the jury the defendant requested the trial court to charge as follows: “ That if the jury finds that Charles S. Voorhees and Francis- Murphy, witnesses who testified for the plaintiff on the former trial are not produced on this trial, and no satisfactory explanation given of their, absence, then the jury may infer that if produced in court their testimony would be against- the plaintiff.” - The court so- charged and the plaintiff excepted.
The question arises whether this particular instruction is not reversible error. The respondent defends this part of the charge on the ground that it did not impose upon the jury a duty of presuming against the plaintiff because of the non-production of the
Jenks, P. J., Burk, Thomas and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.