The action is to recover damages for personal injuries sustained by plaintiff when defendant's truck collided with her automobile. Defendant rested at the close of plaintiff's case. Judgment of the City Court of White Plains in favor of plaintiff reversed on the law, and a new trial ordered, with costs to appellant to abide the event. The court erroneously charged the jury as to the inference to be drawn by the failure of a party to call a witness who is under his control and in possession of material evidence and further erred in refusing to charge as requested at folios 244 to 248. In such circumstances the jury have the right to accept the testimony before them which might have been but was not controverted, and to take it most strongly against the party who might have controverted it but failed to do so. The jury may not, however, infer that such witness would, if called, testify unfavorably to the party who failed to call him. ( Perlman v. Shanck, 192 App. Div. 179, 183, 184; Murthey, v. Murthey, 261 App. Div. 991; affd., 287 N.Y. 740.) Lazansky, P.J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.