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BARBAGALLO v. AMERICANA CORP.

25 N.Y.2d 655 (1969)

Joseph Barbagallo, Respondent-Appellant, v. Americana Corp., Respondent, and Norman Thierer, Appellant.

Court of Appeals of the State of New York.

Decided November 26, 1969.

Attorney(s) appearing for the Case

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.

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.

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...

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