¶1The plaintiff brought this action upon a note given to himself, made by the defendant Steen, and signed with his name. He alleged that the note was in fact made by all the defendants as copartners, and in substance that the name “ Christian A. Steen ” was their firm name.
¶2There was abundance of evidence in the case to throw suspicion upon the character of the transaction. Brooks, the plaintiff, did not appear on the trial, and was not sworn as a witness. Prom his own averments in the complaint, it appears that he knew what the transaction was upon which the note was given, and that it was made by himself, personally.
¶3The court submitted to the jury whether his absence as a witness was in fact a suspicious circumstance, and told them that if they found that it was a suspicous circumstance, and that it was Brooks’ duty to have testified, and given to the jury all he knew in regard to the transaction, that then they must assume that the reason he had not done so, was, that he was afraid to do so, and must be taken as a circumstance throwing suspicion upon the case.
¶4Whether this part of the charge was erroneous or not, is the only question made by the appellant’s counsel. We think it was not erroneous, and that the judge was quite right, under all the circumstances of the case, in submitting to the jury the plaintiff’s absence as a circumstance for them to consider, and in instructing them that if they found such absence to be of a suspicious character, it would certainly throw suspicion upon his ease. The plaintiff must be presumed to have known that his ease was on trial, and, in the absence of evidence tending to explain his non-attendance by reason of inability from any cause, there is no reason for finding fault with the presumptions which the court allowed the jury to indulge. The case is within the principle laid down by the court in Gordon v. The People (33 N. Y., 501), and The People v. Dyle (21 N. Y., 578).
¶5The judgment must be affirmed.
¶6Judgment affirmed.