40 N.Y.S. 769 | N.Y. App. Div. | 1896
This action was brought to recover on a note for $520, made by the defendant Darwin J. Hubbs, and purporting to be indorsed by Silas G. Smith and Joel Hubbs. Darwin J. Hubbs, the maker, negotiated it to the plaintiff with the indorsements upon it as genuine, and received full value for the same. The action is against the maker and both indorsers. The maker made default, and Joel Hubbs and the executors of Silas G. Smith, who has died since the making of the alleged note, defend on the ground that the indorsements upon the note are forgeries. Upon the trial two papers were introduced in evidence by the plaintiff; one purporting to be signed by Silas G. Smith, Joel Hubbs and Darwin J. Hubbs, bearing date June Y, 1889, and being a statement that they had that day indorsed for Darwin J. Hubbs notes to the amount of $2,340, and a guaranty to pay them at maturity; the other dated January 25, 1889, purporting to be signed by Silas G. Smith, and being a certificate that he had indorsed with D. J. Hubbs certain notes therein specified for one "Wallace L. Hubbs. These papers were received as containing the genuine signatures of Silas G. Smith and Joel Hubbs, and were used as such; and the expert witness, Dr. Hagan, was allowed to compare with them the indorsements upon the note in suit, and, assuming them to be genuine, he testified that the indorsements were also genuine. The jury were also allowed to take such papers as containing the genuine signatures of the indorsers and to compare with them the indorsements in question.
The use of such specimens as genuine was strenuously objected to by the appellants’ counsel, at all stages of the case, on the ground that they were also forgeries; that their genuineness was not sufficiently proven to allow them to be used as standards with which to
We are of the opinion that such ruling by the trial judge was error. The proof on the part of the plaintiff that such signatures were genuine was substantially as follows : Darwin J. Hubbs testified that he saw each paper signed ; the one by Smith alone, and the ■other by himself, Smith and his father, Joel Hubbs. -Darwin J. Hubbs, however, is the one who was charged with having forged the indorsements to the note in question, and who, if they are forgeries, must have known that they were such when he negotiated the note. He was also impeached by several witnesses as not being worthy of credit under oath, and the claim of the appellants was that he also forged the indorsements. Upon the lower left-hand corner of the paper first above mentioned is written as follows : “ Charles E. Gorsline, Commissioner of Deeds.” And upon the lower left-hand corner of the other paper is written: “ Witness, Chas. E. Gorsline.” Gorsline was called as a witness by the plaintiff and examined at considerable length as to what he knew about those signatures. The substance of his evidence is that his own signatures were genuine, but that he had no recollection whatever of the papers, or whether they were ever signed before him. He testified that he made it a rule to never sign a paper as witness, or take an acknowledgment, unless the party either signed or acknowledged in his presence, but beyond that he gave no information whatever as to the genuineness of either signature. It seems to be conceded that there was originally an acknowledgment at the foot of the paper first above mentioned, which has been cut off, but before whom it was taken, or how many made it, whether one or three, no one seems able to tell. How, as to the first paper, it is quite evident that one name may have been subscribed to it when Gorsline subscribed his name, and the other two may have been written above it afterwards. As to the second paper, if Gorsline never varied from his rule, we must suppose that Smith either signed or acknowledged it. On the part of the appellants, however, Joel Hubbs denies that he ever signed the first paper, or ever acknowledged any, before Gorsline. Several witnesses also, whom the evidence discloses were reputable, and who had unusual opportunities to become acquainted with the handwriting of both Smith and Joel Hubbs, testified that the signa
Under chapter 36 of the Laws of 1880, any writing, whether material to the issue or not, may be introduced as evidence for the sole purpose of being used as a standard with which to compare the writing in dispute, and the genuineness of such writings must be proven to the satisfaction of the trial court. Under this statute it is settled that the mode of proof is to be regulated by the general rules of evidence applicable to the proof of any handwriting (McKay v. Lasher, 121 N. Y. 482), but what shall be deemed a sufficiency of proof in such cases does not seem to have been definitely decided. At least no case has been called to our attention that lays down any settled rule upon that subject. In many of the States the rule has long prevailed that irrelevant writings might be used as standards with which to compare a disputed writing, and different degrees of certainty as to the genuineness of the standard have been required in different States. In some States that degree of certainty which arises only from direct evidence of the signature, or evidence equivalent to that, has been required. In others a less degree of certainty has been deemed sufficient. (See cases collected in Abbott’s Select Cases on Evidence, 492.) All, however, seem to agree that great care should be taken that the standard be genuine. And in 1 Greenleaf on Evidence (§ 581) the rule is stated to this effect: that such standards only should be admitted concerning which no collateral issue can be raised. The absurdity of allowing a signature claimed to be a forgery to be compared with another which is also claimed to be a forgery, and concerning the genuineness of which there is considerable doubt, is apparent. And it seems clear that whatever may be the character of the proof used, it should be such as fairly establishes the genuineness of the standard offered. "Without intending to lay down any inflexible rule, we are of the opixxion that xxnless the evidence of the genuineness of the standard is so clear that if it were oxie of the issues in the case for the jury to determine a verdict should be directed in favor of its genuineness by the court, it may not properly be allowed
The judgment and order appealed from must be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed, a new trial granted, costs to abide the event.