100 Misc. 687 | N.Y. App. Term. | 1917
Lead Opinion
The plaintiffs sued on a note made by the defendant Horwitz, indorsed by both defendants
The note in its present form reads as follows:
“ New York, February 23, 1915.
“ Five months after date I promise to pay to the order of myself One Thousand Three Hundred and seventy-five 00/100 dollars. Payable at 43 W. 16th Street, New York City.
“ Value received with interest.
“ No. xxx Due July 23, H. Horwitz.”
The defendant Horwitz testified, and for the purpose of this appeal we must accept his testimon,,is true, that when he delivered the note to Brill on February 23, 1915, there were no "words or figures in the blank before the words “ after date ” or after the word “ due:” The note when delivered was, however, entirely complete except that no time for payment was expressed. The holder of the note had prima facie authority under section 33 of the Negotiable Instru
In the present case the defendant Horwitz, in addition to the proof that the note was not in the condition in which it was delivered, testified that prior to the delivery he arranged with Brill that he should give him a note payable on demand but that the note should not become due until a building which Horwitz was preparing to erect was completed. The trial justice struck out this testimony and all testimony of a similar kind on the ground that this court had decided upon the previous appeal that evidence to establish that the note was delivered conditionally was not admissible unless such condition was pleaded. Evidence to establish that a note on its face payable on demand was payable only after the happening of an event not named in the instrument is, of course, inadmissible, for such evidence would tend to vary the written instrument. See Reinhandler v. Lowenthal, 159 N. Y. Supp. 695; Sheldon v. Heaton, 88 Hun, 535. It was, however, admissible in my opinion to show that Brill had no authority to fill in the blanks in the manner he has done.
It is true that the evidence offered by the defendant upon this point is perhaps open to the construction that while Horwitz called the note a demand note it was really the intention of the parties that the note should remain an incomplete .note until the theatre was completed and that the holder should then have authority to complete the instrument by filling in the
I agree with Mr. Justice Bijur that there is doubt whether evidence that the payee had “ authority to fill in the blanks in manner or tenor inconsistent with the remaining text of the note ’ ’ would be admissible but I cannot find that any evidence was offered for such purpose. The defendant offered evidence to show that the note was delivered with blanks for the time of payment. If as a matter of law the note was then payable on demand any change in the note without authority would constitute an alteration. On the other hand if the note was incomplete and the plaintiffs’ assignor thereof filled in the note contrary to the intent of the parties he acted without authority and the plaintiff cannot enforce the note so filled out. The evidence excluded was apparently offered for no other purpose and was, therefore, in my opinion, clearly admissible. The plaintiffs’ attorney objected to this evidence on the ground that it was not within the issues and the trial justice excluded this evidence on that ground only, relying upon a statement in the opinion of this court upon the previous appeal that proof “ that the note was by contemporaneous agreement made payable upon condition ” was not within the issues and raised no question that could have been submitted to the jury. The opinion does not, however, state that proof of alteration would not be within the issues. It did state that the issue of alteration in the note was not litigated on the previous trial and pointed out that in the absence of any explanation connecting’ the letter stating when a note therein described should become payable with the note in suit there was no proof of any alteration. Undoubtedly that opinion is open only to one construction, viz., that if that evidence was supplied the letter would be admissible to
I cannot agree with Mr. Justice Bijur that this point is either obscure or insufficiently presented below. On the contrary, the point was clearly and repeatedly raised at the trial and in repeated colloquy the trial
Judgment should therefore be reversed and a new trial ordered, with costs to appellant to abide the event.
Ordway, J., concurs.
Dissenting Opinion
On the former appeal in this case (97 Misc. Rep. 622) we pointed out that the alleged agreement in writing (a letter), whereby it was claimed by defendants that plaintiffs ’ assignor had agreed that the note in suit should not be payable until the fulfillment of a certain condition, was inadmissible in evidence for any purpose, first, because of its date and terms, which appeared on its face not to relate to the note in suit, and, next, because it was concededly surrendered and destroyed at or about the time that the note was delivered by defendants to plaintiffs’ assignor. It is now sought to reverse this judgment on the ground that either the agreement in writing or an equivalent parol promise made by plaintiffs’ assignor should have been admitted in evidence by the learned judge below in support of the defense that the note was ‘' materially altered. ’ ’
I am far from convinced that-the defense of material alteration can be relied on to render material evidence that blanks left in a note were filled in contrary to the authority conferred on the payee; or that proof of authority to fill in blanks in manner or tenor inconsistent with the remaining text of the note is ever admissible. See Farmers National Bank v. Thomas, 79 Hun, 595, 601, 602. As I view the record on this trial, however, those questions of law need not
Leaving aside the questions of law which I have suggested, it may be true that upon collating and marshalling the various isolated questions, arguments and colloquy presented or participated in respectively by defendants’ counsel, the materiality of this single question may be sustained as tending to support the claim that the note was altered when the blank left in it by defendants was filled in by plaintiffs’ assignor so as to render it due on a date certain (quite in harmony with the text of the note). To reverse a
Judgment reversed.