(dissenting).
I must respectfully dissent. I would affirm the judgment below.
The majority opinion of the court seems to be predicated on the feeling that the trial did not come off quite fairly to the plaintiffs. Yet it is conceded on the elements involved that (a) the verdict was supported and was not *66so clearly a miscarriage of justice as to make that ground per se cause for reversal; (b) the refusal to give the tendered instruction on missing witnesses was not reversible error and (c) the defendants were properly entitled to show as background facts the lawless activity being conducted for a substantial period of time in the immediate locale of the plaintiffs.
In final analysis, it seems we are sending this case back for a new trial because the trial judge is found to have failed to impose quite soon enough a curb on the extent of evidence admittedly admissible to some extent. This seems to be a matter of judicial discretionary judgment and on the record before us I do not think we should fault the judge on the basis that the particular evidence should have been cut off at an earlier point which in our retrospective judgment we now think was the desirable terminal point.
Since the evidence was admissible initially, if only one witness had testified to the orgy of spewing of items from the fifteenth floor of the hotel, the jury would have been aware of what had transpired and the defendants would have been entitled to a full exposition of these background facts on final argument.
I concede that evidence, as well as instructions, may be prejudicially repetitive but I think that a reversal should only result from the admission of corroborative evidence when the trial judge’s discretion has been more clearly abused than it has been here.
The corroboration has an additional significant aspect here. The trier of fact should not be required to consider police action in a vacuum but rather in the context in which it was exercised, here that of senseless lawlessness. It seems to me that the additional testimony served to establish that it could have been no secret to the plaintiffs that they were present, if not themselves participants, at activities designed to precipitate law enforcement appropriate to the disturbance. The measure of that disturbance and its obviousness to the plaintiffs is found in the testimony which the district court permitted in evidence.
The only countervailing argument presently occurring to me on the basis of the extent of the activity is that it might have been thought by the plaintiffs that it was of such magnitude and that since nothing had been done about it by 5 o’clock in the morning, possibly the police had abandoned any effort to curb lawless activity.
With regard to the matter of the missing witnesses instruction I find a very astute analysis of this matter in McCormick, Law of Evidence § 249, p. 533 et seq.
In my opinion the conclusion of Professor McCormick (at p. 536) is correct that even though the failure to call an available witness may be argued, it should not be the basis of an instruction as a matter of right. Here the city had furnished copies of the statements of the police officers taken by the Corporation Counsel and the plaintiffs had taken the deposition of each of the policemen and examined them in detail. In my opinion, the instruction was properly refused.
For the reasons hereinbefore set out, I would affirm the judgment.