120 N.Y.S. 270 | N.Y. App. Div. | 1909
Lead Opinion
The' previous decision made in this case was based upon the ■ principle that a party vouches for the general credibility of the wit-. nesses called by him. The plaintiff arid her.son were called: and examined by the defendants as witnesses in their behalf, and it -was held that no issue was raised for the determination of the jury on the. mere ground of their credibility as interested witnesses. (See Becker v. Hart, 129 App. Div. 511.) A reargument ■ was ordered on the question whether the circumstances disclosed".by the evidence did not create sufficient doubt and suspicion as to the integrity and ■ good faith of the plaintiff’s ownership of the promissory note in suit as to. require a submission of the case to the jury, I am clearly of the opinion that a.proper case was presented for submission t.o the jury, and that the-trial court had no power to direct the entry- off" a judgment in conflict with the verdict rendered. • ■ ■ -
There are many facts and circumstances connected with' the plaintiff’s alleged ownership of the note which tend to make such ownership a proper consideration for the determination, of' a jury, and the court could not dispose of the case as involving only a ques
Were there no other unusual Or suspicious circumstances in the case than-a claim, to tlié purchase of an unquestionably good note, having less than six weeks to run, for but a little more than one-half of its face value, that fact alone would, have required a submission of the case to the jury. While it if undoubtedly true that a valid purchase' of a note may be made for less than its value, the discrepancy may be- large enough to indicate falsity and had faith. “As a general proposition it may be said that the amount paid is .otherwise unimportant than as evidence to, be considered by the
In Canajoharie Nat. Bank v. Diefendorf (123 N. Y. 191) it was held that the holders of negotiable paper are only.entitled to the benefit of the rule of the commercial law which forbids its validity being questioned when they have purchased such paper in good faith, in the usual course of business, before maturity, and for full value. In Second Nat. Bank v. Weston (172 N. Y. 250) the court said (p. 257): “ The discount taken may be so great as to impeach the good faith of the purchaser, the same as a chattel may be bought at so much under its true value as to justify the inference that the purchaser knew or suspected that it had been dishonestly acquired by his vendor. Hall v. Wilson
The judgment and order should be reversed.
High and Miller, JJ., concurred ; Burr, J., read for affirmance, with whom Jerks, J., concürred.
16 Barb. 548.— [Rep.
Dissenting Opinion
A reargument .was ordered in this case and it devolves upon us to consider whether we erred in the decision which was previously made; (See 129 App. Div. 511.) If we did, we should welcome the opportunity to correct it. On the reargument the point is made that, the case should have been submitted to the jury upon the question whether the plaintiff became a bona fide holder of the note in suit before maturity. At the time of the trial the note was in the pos- ' session of the plaintiff. This raises a presumption that it was trans-. , ferred before maturity for a valuable consideration, and that the plaintiff is the lawful holder thereof. (Neg. Inst. Law [Laws of .1897, chap. 612], § 98; Newcombe v. Fox, 1 App, Div. 389.) Further evidence as to the.time and manner of the acquisition, thereof was elicited from the plaintiff and her son- Charles II. Becker, who were called as witnesses for the defendants. It is. urged on the one hand that when the defendants called these witnesses they'vouched for their credibility in general, and cannot now be permitted to impeach their testimony. (Coulter v. American Merchants’ Un. Ex. Co., 56 N. Y. 585; Nichols v, White, 85 id., 531; O’Doherty v. Postal Telegraph-Cable Co., 113 App. Div. 636; Berkowsky v. New York City R. Co., 127 id. 544.) On the other hand, ■ it is urged that while the general rule may be as above stated, when the exigencies of the case require the calling of an adverse party as a witness,, if there is in the evidence such improbabilities or contradictions 'as fairly to raise a question as to its credibility, then it becomes the province of the’ jury to determine where the truth lies. (Becker v. Koch, 104 N. Y. 394; Pres't, etc., of Manhattan Co. v. Phillips, 109 id. 383; de Meli v. de Meli, 120 id. 485, 490.) Both propositions seem to us to be correct. There' is a distinction between impeachment and contradiction. Impeachment attacks a witness’ honesty; contradiction his accuracy.. A witness may-be. contradicted by other witnesses or by circumstances. His own testi
This fairly summarizes all of the evidence in the case relative to the transfer of the note that was properly received. Suppose that after the plaintiff had put the note in evidence and had rested, the defendants had called the plaintiff as a witness and had asked her four questions: First, when did you acquire this note; and she had answered, about three weeks after its date; second, what did you pay for it; and she had answered, $1,000 ; third,, where did you obtain the money; and she had answered, from a tin box which I kept in my house where I had been accumulating it for a long period of years; and fourth, has the note ever since been in your possession; and she had answered, yes, except for a few days at about the date of its maturity when my son had it, and then had rested. Would any one pretend that such evidence was sufficient to overcome the presumption that arose from the possession of the note? Tet that . is all there is in this case. Evidence was also received that subsequent to October, 1903, the defendants paid to David Levy in various installments the entire balance then remaining unpaid upon said note. This evidence was incompetent under section 829 of the Code, and was received upon an undertaking on the part of the defendants to connect the plaintiff with knowledge thereof. There was no evidence to that effect. But if it had been properly admifcte.d the concession is important that at, the tizne these payments were made the defendant Levy did not produce the note, and that the defendants did not see it. It is suggested that the plaintiff’s son may have stolen the note from Levy’s possession, or extracted it from his papers after his death, and is now attempting to collect the' same in his mothez,’s name. It seems to us a much more reasonable suggestion that Levy did obtain from her $1,000 upon the note, and desired to conceal that fact frozn the defendants, as he was then in need of money, and before its maturity was seekizig to obtain payments, from them on account of it. This would also explain why the note was not protested. Levy knew; that the makers were perfectly good, and he did not wish them to know that the note had been transferred. Probably he intended to repay the plaintiff the money which he had obtained from her, at some future tizne, get back the note and deliver it up to the defendants.
The judgment and order appealed from should be affirmed, with costs.
Jerks, J., concurred.
■ Judgment and ".-order reversed on reargument, and new trial granted, costs to abide the event.