1 N.Y.S. 139 | N.Y. Sup. Ct. | 1888
This action was brought to recover an alleged balance due from the defendant to the plaintiffs upon a deposit account which the plaintiffs kept with the defendant. The defendant denied that any sum was due, and set up five distinct statements of the accounts between the parties followed by the payment of the balances found due, and alleged that the balance in question arose from the payment by defendant of 12 certain checks drawn by plaintiffs, and claimed by them to have been insufficiently indorsed, and that the same were in fact properly indorsed, or else their payment was due to the plaintiff’s negligence; and, further, that the plaintiffs had ratified the indorsements by suing the persons to whom the checks were paid for the amount thereof as plaintiffs’ money. Upon the trial it was conceded that the balances involved arose from the payment of the 12 checks mentioned in the answer, the plaintiff’s claim being that the indorsements were forged by their book-keeper, Fischel. All these checks were shown to have been returned by the defendant to the plaintiffs when their pass-book was balanced from time to time, and such checks and pass-book were retained by the plaintiffs, without objection to the charge of any of these checks, for a considerable length of time, except in the case of one check dated August 19, 1885, which was for the amount of $1,486.55. Hone of the checks were produced upon the trial except the one above mentioned. It appeared during the progress of the trial that Fischel was accustomed to draw the checks of the plaintiffs, and have them signed by a member of the firm or by a Mr. Klotz, duly authorized to make such signature, and that upon the return of the vouchers from the bank upon the balancing of the bank-book, such vouchers came into Fischel’s possession, and he examined the .bank account, and that he took out from among the vouchers the 11 fraudulent checks not produced, the twelfth check having been returned from the bank subsequent to the time of the discovery of Fischel’s frauds, and his flight. The jury found a general verdict in favor of the defendant. Upon the motion to set aside the verdict the same was granted, the judge remarking that a right of recovery existed as to one of the checks, at least, referring to the check already mentioned and which was produced upon the trial. The defendant has appealed from this order, and the question presented upon this appeal is whether the court was justified in setting aside the verdict of the jury.
It is well settled that the verdict of a jury cannot be interfered with simply because the judge who tried the cause might entertain a clear and decided conviction that the truth is upon the side of the case opposed to the verdict of the jury; and that when the inferences to be drawn from the testimony are not clear and uncontrovertible, and men of ordinary judgment and discretion may differ as to their significance, it is the exclusive province of the jury to pass upon the questions involved; and that where there is conflict of testimony, the verdict of a jury can only be set aside when the case itself presents evidence that the jury must have been influenced by prejudice, passion, or mistake. There frequently arise during the progress of a trial circumstances which are within the knowledge of a trial judge, and by which the jury are improperly influenced in the rendition of their verdict, when it becomes the duty of the court to set aside the verdict because it has been influenced by prejudice, passion, or mistake. In the case at bar, however, there is no pretense that any of these elements arose which called for the interposition of
As to the check of the 19th of August, 1885, for $1,486.55, a different rule prevails. In that case, upon the return of the check from the bank, it was rejected and the account disputed. It then became necessary for the bank to show that they had rightfully paid out the money, and it could only do so by proving the indorsement upon the back of the check. The whole foundation of the plaintiffs in respect to the 11 checks, as to which the burden of proof rested upon them, is based upon the testimony of Fischel. It is true that the learned counsel for the plaintiffs claim that the case is made out for the plaintiffs outside of the testimony of Fischel; but a very brief examination of the facts of the case shows that his testimony forms the keystone of the whole evidence upon which the plaintiffs claim to recover as to these 11 checks. It is urged that the confession and other testimony of Fischel were merely corroborative evidence of the forgery which was complete without that testimony. But we have failed to find, and the counsel has failed to point out, the testimony which establishes the facts, independent of that of Fischel, necessary to the plaintiffs’ recovery as to 11 of the checks in suit. It was necessary for the plaintiff to establish what the checks were, to whom they were payable, and that they were not indorsed by the payees. Where there is any evidence establishing these facts, outside of Fischel’s testimony, we have been unable to ascertain. The plaintiffs claim the right to recover because they have called the payees of the checks in question, or the persons who were supposed to be the payees, and they have sworn that they did not receive or indorse any such checks as the 11 checks are supposed to be. That these checks were
The check of August 19, 1885, however, stands upon an entirely different footing. If the burden of proof was upon the plaintiff to establish that that check had been forged, or that the payee’s name had been altered after signature, there undoubtedly is not sufficient evidence in the record to justify a recovery. The evidence of the experts as to handwriting was considered by the jury, and if it was entitled to any consideration, rejected by them, as they had a right to do. There is no rule of law that requires jurors to surrender their judgment implicitly to, or to give the controlling influence to the opinions of, scientific witnesses. The jury have a right to consider the testimony to determine what credence shall be given to it and to weigh it according to their own judgment, and such evidence can never be wholly conclusive, save in cases where none but experts are capable of determining the question. Therefore, applying this rule to the case at bar, even if the testimony of the experts tended to show that the check produced had been altered after signature, and the indorsement forged, the jury had a right to reject the evidence, even though there may have been none to contradict it. But the evidence of the experts falls far short of showing that the check was altered after signature, or that the indorsement was forged, The most that it tends to establish is that the letter “T” changed to an “F” in the payee’s name, after the name had been written, and in a different ink, and that the indorsement, “F. D. Davis, ” resembled Fischel’s handwriting. Every particle of this evidence might be entirely true, and the signature have been made, after the alteration and the indorsement, that of the payee.. There is no proof that the “T” was changed to an “F” after signature. The sole proof is that the “T” was changed to an “F” the “T” was written, which, in view of the character of the writing, was a necessary fact, neither is the fact that different ink was used in the change of the “T” to the “F” of any significance. It appears that the date of the check was in a different ink from the body of the check, and it is conceded that checks of blank date were not signed by the plaintiffs. The mere fact that the indorsement, “F. D. Davis,” upon the
It is claimed that because of some suit brought against some other parties the defendant thereby became discharged from its obligation to pay this money upon the ground that the plaintiffs had elected their remedies, and, having elected to pursue the fraudulent receiptors of the money, they cannot hold their debtor, the bank. We think, however, that this position requires an entire misapplication of the doctrine as to the election of remedies. The relation between the bank and the plaintiffs was simply that of debtor and creditor. The plaintiffs had an absolute right to claim the payment of their debt, and until the bank was released by the action-of the plaintiff from that claim, no matter how many other persons the plaintiffs might pursue, for the purpose of collecting that debt, the defendant is not discharged. It is entirely different from the case of two remedies being within the reach of the creditor where his selection of one precludes the use of the other. There was but one -debtor, the bank, and the bank could not discharge its duty by claiming that the plaintiffs had pursued somebody else for the same debt. The cases cited are cases relating to the election of remedies. There is no such doctrine in reference to the election of debtors. It would appear, therefore, that the plaintiffs were entitled to recover upon the proof as it stood in the ease at bar upon the check produced, and that the court was j ustified in granting the motion to set aside the verdict and for a new trial. The order appealed from should therefore be affirmed, with costs.
Bartlett and Macomber, JJ., concurring.