144 N.Y. 354 | NY | 1895
The complaint alleged that the note sued upon was given for value, and was under the hand and seal of the defendant. The answer contained a general denial of the allegations in the complaint, and in separate paragraphs, stated to constitute separate defenses, alleged that the note was without consideration, and that it was altered in material parts, and, among other things, by affixing a seal thereto without the consent or privity of the defendant. On the trial the note was offered in evidence by the plaintiff, and he then rested. The execution of the note by the defendant seems to have been admitted, as no proof was given upon the subject. It purported to be signed by him and a seal was attached to his signature. The defendant thereupon entered upon the defense. The question of consideration was litigated, and the defendant also gave proof tending to show that the seal was attached without his knowledge or consent by the plaintiff after the execution and delivery of the note. The evidence on the part of the defendant, as to the alteration by the addition of the seal, was met by evidence in behalf of the plaintiff that the seal was attached before execution. The case was submitted to the jury under a charge of the judge, and the jury rendered a general verdict for the defendant. Judgment was entered on the verdict, from which the plaintiff appealed to the General Term, which affirmed the judgment, and this appeal is from the judgment of affirmance.
The allegations of error are founded mainly upon the charge to the jury. The judge charged in substance that if the seal was attached to the note by the plaintiff after execution and delivery, without the knowledge or consent of the defendant, it constituted a material alteration and the note was void. There was no exception to this part of the charge, and it must be taken on this point to have correctly stated the law. We are not to be understood, however, as dissenting from this view, but it is unnecessary now to consider it. The court further *358
proceeded to charge that the plaintiff was bound to establish by a preponderance of evidence that the seal was not attached after the signature to the note. This was qualified afterwards by the statement that this burden rested upon the plaintiff after testimony had been given to show that the seal was attached after the inception of the note. The plaintiff's counsel excepted to the charge as made and explained. This exception presents the principal question in the case. We think the charge was correct. Upon the pleadings, a general denial having been interposed by the answer to the whole complaint, the plaintiff was bound to establish every material fact therein alleged. The primary issue was the execution or non-execution by the defendant of a sealed instrument. The plaintiff alleged the making by the defendant of a specialty creating a pecuniary obligation, and issue having been taken on this allegation, the plaintiff was bound to establish the allegation by proof. If it had turned out on the trial that the allegation had been made by mistake and that the instrument was not sealed, but was a simple contract only, or that the seal had been attached after execution by a stranger without the privity or knowledge of the plaintiff, it would have been in the power of the court to have permitted an amendment of the pleadings upon such terms as it should deem just. But as the pleadings stood the question whether the defendant had executed a sealed instrument was an issuable fact, which was asserted on one side and denied on the other, and which the plaintiff was bound to establish as a part of his case. The defendant, under a general denial, may adduce evidence to controvert what the plaintiff is bound to prove in the first instance (Milbank v.Jones,
The appellant, in support of his contention that the charge as to the burden of proof was erroneous, cites some cases in other states which, to some extent, sustain his view. But it seems to us they are opposed to sound principle, and at least cannot be followed in this state, in view of our decision in Schwarz v.Oppold. The remark quoted from the opinion in the case ofWilliamsburgh Savings Bank v. The Town of Solon (
One other question only needs special reference. The plaintiff was not present on the trial, and his counsel early in *361 the case introduced a witness to account for his absence, and the reason given was that he was partly paralyzed, and although mentally sound was not able to attend the trial. It seems that the fact that the plaintiff had not appeared as a witness was commented upon by counsel, and the court in the charge, referring to the subject, said: "It is true, of course, that his testimony might have been taken at his house." This statement was subsequently excepted to, and it is claimed by the plaintiff's counsel that it was prejudicial, because an examination of a party before trial on his own behalf could not be taken. This is a clear misapprehension of the Code provision (Sec. 872, sub. 5) as it now stands. The last clause in the subdivision was inserted to except a party to the action from the restriction in that subdivision. A party complying with the provisions of the other sections is permitted to perpetuate his own testimony in the case by an examination before trial.
We think the judgment is right and it should, therefore, be affirmed.
All concur, except HAIGHT, J., not sitting.
Judgment affirmed.