Feldberg v. Howard Fulton Street, Inc. , 245 N.Y.S.2d 168 ( 1963 )

In a personal injury action resulting from the burning of a sport shirt worn by plaintiff and purchased by him from defendant, in which the defendant interposed a third-party complaint against Brentwood Sportswear as third-party defendant, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, entered May 7, 1962 upon a jury’s verdict after trial, as was in the defendant’s favor. Judgment, insofar as appealed from, reversed on the law, with costs to plaintiff; third-party action severed; and a new trial ordered as between plaintiff and defendant Howard Fulton Street, Inc. It was error to permit the experts, over the plaintiff’s objection, to give their opinion that the shirt was of merchantable quality and that its material made it reasonably fit for use as a shirt. These conclusions embraced the very issues to be decided by the jury (Personal Property Law, § 96). With the facts before them, the jury could draw their own conclusions; it was their sole province to do so (Dougherty v. Milliken, 163 N. Y. 527, 533). It was also erroneous, in the context of this case, to charge the jury that the rule relating to the inferences to be drawn from the failure to call witnesses in the power of a party so to do, applies to experts. There is no evidence that the plaintiff even consulted an expert, much less that, within the requirement of the rule, an expert was in his control. Under the circumstances the jury may have been misled to the plaintiff’s prejudice. Ughetta, Acting P. J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.