In consideration of the entire record of the "ng discussed by my brother Putnam, J., I think that in an y event there is no capital error. (See Post v. Brooklyn Heights R. R. Co., 195 N. Y. 62.)
I concur. However, I state my opinion that the rule of Bleecker v. Johnston (69 N. Y. 309) still obtains in full force. The general principle is stated in Wigrnore on Evidence (Vol. 1, § 285). The case has been cited in many judgments. Schwier v. N. Y. C. & H. R. R. R. Co. of N. Y. 558) is an instructive instance of the application of rale. In that case the court, speaking of the knowledge oí - he engineer that the boy was beneath the tender, say: “ I she engineer had not this knowledge —hit these inferences ’-ere not well founded, they could hive bee'» removed by hie testimony. It was not given, and while the emission to call t ae engineer as' a witness is not evidence against- the defendant' of the existence of any fact, it is cause for taking such testimony as is in the case — and which, if untrue, he might have contradicted or explained — most strongly against Ik” ^ /
Judgment and order-affirmed, with costs.