Fitch v. Shubert Theatrical Co. , 160 N.Y.S. 1066 ( 1916 )

Dowling, J. (dissenting):

I believe it was error to refuse to receive in evidence the letter of February 21, 1911, in view of the failure of the witness Megrue to deny its receipt by him, as it bore strongly upon the question of whether or not there was any intention to deceive, misrepresent or conceal as to the purchase of the rights of the European authors or any attempt to defraud. Moreover, upon all the evidence in the case as to the preparation of the letter, the whereabouts of the carbon copy, the failure to deny its receipt and Megrue’s letter of February 23, 1911, I think a question was raised for decision by the jury as to whether or not said letter had been sent and received. I, therefore, dissent from the affirmance of the judgment, and favor its reversal and the granting of a new trial.

Judgment and order affirmed, with costs.