Golden v. Weinstein

Smith, J.:

The action was an action for indecent assault. The plaintiff swore to the assault and was corroborated by a witness who was a co-employee. The defendant produced different witnesses who swore that they were around the building and could have heard the outcries which the plaintiff claims to have made, if the assault had been committed and those outcries had been made, and that they heard nothing. After the defendant had sworn five witnesses, the court refused to allow him to swear any more witnesses to these facts, on the ground that such evidence was cumulative. That this was error is held in Page v. Krekey (137 N. Y. 307); Ward v. Washington Ins. Co. (6 Bosw. 229); Capron v. Douglass (193 N. Y. 11); Hauptman v. New York Edison Co. (160 App. Div. 917).

The determination of the Appellate Term and the judgment of the City Court and the order should be reversed, and a new trial granted, with costs in all courts to appellant to abide the event.

Clarke, P. J., Laiighlin, Dowling and Greenbaum, JJ., concur.

Determination appealed from and judgment of the City Court reversed and new trial ordered, with costs to appellant in all courts to abide the event.