¶1(concurring.) On perusal of the record the inference is unavoidable that the court declined to permit counsel for the defendant to sum up to the jury on the issue submitted to their determination. After passing upon a motion by plaintiff’s counsel for the direction of a verdict/ the court immediately proceeded to charge the jury; and at the earliest moment possible, without an indecent interruption, counsel for defendant asked, “Are we not to have an opportunity to sum up the case?” to which the court responded, “No summing up was necessary, … inasmuch as there was but one simple question of fact for the jury.” Be the issue simple or complex, counsel have a legal right to be heard upon it before the jury. If the court may deny the privilege upon the assumption that the case is too plain for argument, then the exercise of the privilege stands, not upon the legal right, but upon the misconception or caprice or arbitrary volition of the court. To this proposition I cannot assent. The dictum in its support (People v. Cook, 8 N. Y. 67, 77) is of no authority, and is repugnant, alike to the rights of litigants and the duty of counsel, (2 Rum. Pr. 304; Douglass v. Hill, 29 Kan. 527, per Brewer, J.; Garrison v. Wilcoxon, 11 Ga. 154.) Upon this ground I concur in the reversal of the judgment.
22 N.Y.S. 939
Fareira v. Smith
New York Court of Common Pleas
Decided April 3, 1893
New York Court of Common Pleas · decided 1893-04-03
Action by Mary Barker Fareira against Roderick H. Smith for money alleged to have been loaned by plaintiff to defendant. The defenses were a general denial, and that the loan was not made to defendant, but to a third person, through defendant as the medium.
Relies on The People v. . Cook · Douglass v. Hill · Garrison v. Wilcoxson
Reversed · Decided 1893-04-03