Argued October 27, 1969
Decided November 26, 1969
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, CHARLES A. LORETO, J.
Benjamin H. Siff and Peter E. DeBlasio for respondent-appellant.
Robert E. Curran, Ronald D. Rose and Kevin D. Moloney for appellant.
Robert G. Sheller and Edgar L. Sheller for respondent.
MEMORANDUM. The exclusion of the telephone conversations was error because they were relevant to establishing the duration and depth of defendant's alleged fear. The truth of their contents was not the purpose of defendant's offer. ( Ferrara v. Galluchio, 5 N.Y.2d 16, 19-20; Richardson, Evidence [9th ed.], § 211.) It cannot be concluded that, as a matter of law, the jury would not have been influenced by the additional details in assessing defendant's alleged fear of injury to himself or his family. The request as to the effect of the failure of plaintiff's wife to testify was improper in form and, therefore, was properly denied ( Seligson, Morris Neuburger v. Fairbanks Whitney Corp., 22 A.D.2d 625, 629-631).
Judges BURKE, BERGAN, BREITEL, JASEN and GIBSON concur in memorandum; Chief Judge FULD and Judge SCILEPPI dissent in part and vote to affirm as to both defendants on the opinion at the Appellate Division.
Order modified to the extent of reversing the judgment in favor of plaintiff against defendant Thierer and directing a new trial, with costs to abide the event, and, as so modified, affirmed, with costs to defendant Americana Corp., in a memorandum.