5 N.Y.S. 486 | N.Y. Sup. Ct. | 1889
1. Plaintiff gave evidence upon the trial tending to establish the genuineness of the signatures of the deceased to the several promissory notes mentioned in the report of the referee, and the defendant gave evidence strongly tending to indicate that the notes were forgeries, and were not executed or delivered by the deceased to the plaintiff. The issue of fact was so' closely contested as to whether or not the signatures were genuine, as well as
2. When the witness Daniel T. Ames, an expert in handwriting, or “a pen artist, ” was being examined, it appeared that he had studied very extensively the signatures of Barnard upon genuine instruments, and the alleged signatures upon the notes in question, and he was asked by the defendant, viz.: “Prom your examination, what do you find the nature and characteristics of Barnard’s bandwriting, as indicated by the exhibit referred to on your traces?” This was objected to by the claimant as incompetent, improper, and calling for a conclusion of the witness as to what is the characteristic of Barnard’s handwriting. The referee remarked, viz.: “I think that is too broad.” Thereupon the defendant took an exception. At folio 143 the witness said: “I will refer first to the capital ‘ H ’ in the signature. Taking the ‘ H ’ of the $5,000 note, I find a letter beginning [witness refers to his blackboard, and asks to be allowed to illustrate thereon his meaning in evidence.]” The plaintiff objected. The referee remarked, viz.: “Why refer to the blackboard?” Again the witness was asked, viz.: “His handwriting and characteristics then was to commence the * H ’ on which side?” The witness answered: “The rule is no initial whatever, but more frequently to the right.” The plaintiff’s counsel moved to strike out the answer, and the referee remarked-, viz.: “I think the objection is good.” An exception was taken by the defendant’s counsel. Again, at folio 162, the witness said that “there are no extreme and radical departures from the customary length or habitual length of the genuine signatures. State the same as to initial sweeps.” The plaintiff objected to it as incompetent and improper. The referee sustained the objection, and defendant took an exception. Again the witness was asked: “Can you illustrate upon the blackboard, and show more clearly, the ■difference which you point between the disputed and genuine signatures?” That question was objected to as improper and immaterial. The witness answered, “I think so. ” Thereupon the defendant’s counsel asked the witness the following question: “I will ask you to illustrate upon the blackboard the difference you have specified,—the chief ones?” This was objected to, and the objection was sustained, and the defendant took an exception.
We think the referee did not allow the latitude usually indulged in the examination of an expert witness, nor follow the rules approved in McKay v. Lasher, 3 N. Y. Supp. 352. In that case the court observed, viz.: “The next objection is that an expert witness was allowed to explain upon a blackboard his meaning, and the reasons for his opinion. We think there was no error in this. Of course, the whole class of expert evidence is exceptional; and, as
3. We are of the opinion that the preponderance of evidence is with the defendant in respect to what transpired between the plaintiff and the witness-Miller and the witness Williams at the time she exhibited notes to them referred to in their testimony, and that the refusal of the referee to find in accordance therewith was a refusal to find in accordance with the weight of the-testimony upon the subject of those interviews.
4. While we recognize the rule that it is within the province of this court, to examine all the evidence bearing on the disputed questions of facts, and determine whether the report of the referee is in accordance with the weight off evidence, (Finch v. Parker, 49 N. Y. 1,) yet, inasmuch as the conclusion which we have reached in the preceding part of the opinion will lead to a new trial, where the questions of fact must be fully presented upon the testimony already given, as well as upon such as either side may produce in addition, thereto, we do not think it opportune to pass upon the main questions of fact, involved in the issues between the parties. We think the judgment and order should be reversed, and a new trial ordered before another referee, with* costs to abide the event.
Martin, J„ concurs.