Prendergast v. Interborough Rapid Transit Co.

Order reversed, with costs, and motion for new trial granted, costs to abide the event, upon the ground that the court erred in its charge upon the subject of adverse inference permissible to be drawn from the unexplained absence of a witness to a material fact. Wade v. City of Mount Vernon, 133 App. Div. 389 , at 390, 117 N. Y. Supp. 356 ; Reehil v. Fraas, 129 App. Div. 563 , at 566, 114 N. Y. Supp. 17 . Thomas, Stapleton, Mills, and Putnam, JJ., concur. Jenks, P. J., dissents, upon the ground that the instructions in question as made at folios 652, 653 and 672 did not constitute capital error.