93 N.Y.S. 1042 | N.Y. App. Div. | 1905
Lead Opinion
The crucial question in this case has resolved itself into an inquiry as to whether, when the plaintiff delivered the note to the bank, he delivered with it the card upon which he had written the address of the indorser upon the note. If he did, then it is quite evident that the jury would be authorized to find that the bank was negligent in failing properly to charge the indorser with liability for the
The conflict of evidence betwéen these witnesses was- sharp, and the credibility of their statements was material and vital upon the issue involved. Under these circumstances, each party was entitled to every scrap of testimony which bore upon tlie issue or affected the credibility of the statements of either.
At the close of the defendant’s case the plaintiff called Carvalho., an expert witness in handwriting, for the purpose of showing that the indorsement on the note of the indorser’s residence was in the 'han.dwriting"'of Laffey. . Objection was made to this testimony, • based upon the ground that it was not in rebuttal of the defendant’s case. The court so held and excluded the testimony; to which ati exception was taken.
As to who in fact wrote this indorsement became a material issue. The defendant, upon the cross-examination of the plaintiff, had interrogated him concerning it and claimed that it’ was in- the hand
There can be no question but that testimony showing that Laffey wrote-the indorsement upon the note before its delivery to the. plaintiff was competent and material. It bore directly upon the issue as to whether he had the card in his possession, as claimed by the. plaintiff, or had received information from him as to the address of the indorser. The writing upon the card being in abbreviated form, and the indorsement, upon the note following closely that of the card and exactly so. as to the abbreviations, had such indorsement been shown to be in the handwriting of Laffey, it would have authorized the inference that at the time when he made the indorsement upon the note he either had before him the card which contained it or was possessed' of information concerning it. He could only have become, according to his testimony, possessed of such information either by the possession of the card or by information given to him by the plaintiff at the time of the delivery of the noté to the bank for collection.
It is said, however, that the plaintiff was bound to make proof of such facts as a part of his affirmative case, and that, having failed so to do, it was not available by way of rebuttal. If this claim be true, there was no error in the ruling, as it would be discretionary with the court to permit the evidence or deny it, and no error could be predicated of the ruling even though the testimony was inherently competent and material. But where the evidence offered tends directly to weaken, contradict or impeach the statement of a witness upon a material question, it is competent by way of rebuttal, and it is error to exclude it. (Bancroft v. Sheehan, 21 Hun, 551; Odell v. McGrath, 21 App. Div. 252; Rap. Wit. §§196, 255.)
' The judgment and order should, therefore, be reversed and a new trial granted, -with costs to the appellant to abide the event
Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred ; > O’Brien, J., dissented.
Dissenting Opinion
This action is brought to recover the, damages sustained by the plaintiff as payee of a -promissory note, by reason of the alleged negligence of the defendant in failing to give proper ánd timely notice of protest to the indorser thereon.
The note was made by one Starbird to the order of the plaintiff, , was indorsed by Ira Van Grieson and deposited by the plaintiff with the defendant bank for collection. When it fell due it was presented for-payment and dishonored. The notary clerk in the bank' thereupon prepared notices -of protest, one to the plaintiff, which was mailed to him at his proper address, and one which was intended for the indorser. The indorsement upon the note not being /clearly written,- the notary clerk made a mistake in the, name, and instead ■ of reading it Ira Van Grieson, he concluded that it. was “ Waran
Upon this trial it was made to appear that the maker of the note was financially irresponsible, and the plaintiff contends that the defendant is liable for the damages caused by the release of the indorser through its alleged negligence in mistaking the name and not giving the proper notice of protest. That Van Gieson’s name as it appeared upon the note was so illegible as to be. easily mistaken was conceded, and practically no claim was made at the trial that the notary clerk was negligent in misreading it.- But the plaintiff alleges that at the time he left the note with the defendant for collection, he called attention to the fact that he believed the maker was financially irresponsible, and handed to the person in the bank who received the note from him a card bearing upon it, clearly written, the name and address of the indorser.
If the bank, having the true name and address in its possession at the time the note was protested, nevertheless made the error which it is conceded was made, then the jury would have been justified in finding that, under such circumstances, it was negligent in not mailing the notice of protest to the address of the indorser as given upon the card.- Whether or not the card was presented as claimed, was the sharply contested issue at the trial.
Upon the subject, the plaintiff testified that at the time he received the note, the maker Starbird gave him a card upon which he had written the name of the indorser, “Dr. Ira Van Gieson,” and his address, “jj 1 Madison .Ave., City,” and that the plaintiff thereupon wrote upon the card, in pencil, the words, “Director Path. Institute State of N. Y.; ” that at the time he took the note to the bank, shortly after January 5, 1898, he handed to the note teller the note itself, the card referred to, and certain stock which was to
The notary clerk, Power, who protested the note, was called for ■ the plaintiff and testified that he had received no stock or card with the note and that at the time it was prof estéd there was not upon Ahe note any address of- the indorser, and that he could not ascertain that address from any one in the bank. This is substantially all the evidence offered by the plaintiff; and as to the crucial facts in the case, he is, "therefore, practically uncorroborated.
For the defendant, the witness Laffey was called and testified that he was the person who received the note from the plaintiff, and he contradicts the plaintiff absolutely as to receiving the card or stock at that or any other time. He stated that when the note was handed to him by the plaintiff, nothing at all accompanied it .and there was no conversation with'reference to the fact that the plain- ■ tiff was. going ■ out of the city and Wanted the bank to be careful that the note was properly protested, as he did'not believe "the maker to be good. He testified also that aftér the note had been dishonored, " ' the plaintiff got it from him, and neither at that time nor at any xsubsequent time did he ask for a card, and that neither he (the wit
The receiving teller of the bank, Searle, testified that when the note came into his hands there was no stock with it and no card attached to it in any way, and the cashier,. Evans, testified that at no time subsequent to the dishonoring of the note did he, according to his recollection, have any conversation with the plaintiff.
It will thus be seen that the plaintiff was contradicted upon nearly every material point by witnesses called for the defendant; and upon this conflicting evidence a question of fact was presented which was properly submitted to the jury, and their finding in favor of the defendant is certainly not against the weight of evidence. Not only is the plaintiff’s testimony contradicted by the defendant’s witnesses, but his own statements on this trial differ in certain material particulars from those made by him upon the trial of his former action against Van Gieson, and these circumstances, together with the fact that he is an interested party and practically uncorroborated, show that the verdict in favor of the defendant was, to say the least, not an improper one. ■
The judgment appealed from must, therefore, be affirmed, unless there was some reversible error committed at the trial.
Many rulings of the trial court were brought to our attention by the appellant, and we have examined them all with care, but have discovered no errors which require a reversal, and we do not deem it necessary to specifically consider any of the rulings except one.
Upon the back of the note as it was introduced in evidence, and under the name of the indorser., appeared in lead pencil the words, “ 1 Madison Ave., Path. Institute of State N. Y.” It is conceded that this pencil indorsement was not upon the note when it was left at the bank, nor when it came into the hands of the notary and was protested by him. The plaintiff now testifies that it was upon the note, however, when he got it back from the bank, although upon a former trial he had testified that those words were in his own handwriting, and consequently could not have been there until after the note had come again into his possession. In order to' explain this discrepancy he now testifies that on account of bejng near-sighted he was mistaken as "to the handwriting when he gave his former testimony, but that upon a further examination of the
After the defense had put in all of its evidence, however, an ■ expert in handwriting, Carvalho, was called, was shown the pencil ¡ indorsement upon the mote, also the similar words written in pencil upon the card and concededly in the handwriting of the plaintiff, and also two letters concededly in the handwriting of Laffey. With these instruments, before him, the witness, who had been duly qualified, was asked' to state whether, in his opinion, the pencil memoranda upon the note was in the same handwriting as the . '-.pencil memoranda upon the' card, to'yit, the plaintiff’s, or in the same handwriting as the letters, to wit, Laffey’s. .' This question w.as ■ objected to as incompetent and improper ;■ that no foundation had . " been laid for itthat it was speculative and not rebuttal evidence. The objection was sustained and the plaintiff excepted.
We do hot think the ruling of the trial court presents a reversi- '. ble error. Hb rule for the conduct, of- trials is more familiar than that the. party holding the affirmative is bound to introduce all the evidence on his, side before he closes. He must exhaust all his testimony in support of the issue on. his side, before testimony on the opposite side-is heard. He- can afterwards introduce evidence in rebuttal only, and rebutting evidence in such cases means not merely / evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove. (Marshall v. Davies, 78 N. Y. 414.) The rule has been . correctly stated by Mr, justice McLaughlin in Barson v. Mulligan, (77 App. Div. 192), where it is said:. “ Hpon a trial a party is bound to produce all his evidence before he closes his side of the case, and after he has closed his case and rested, it is within the discretion of the court whether or not to allow a reopening of the case to supply omissions or. to receive further testimony, but such discretion shall be sparingly exercised.” (Agate v. Morrison, 84 N. Y. 672; Young v. Johnson, 123 id. 226.)
• It Nis the theory of the plaintiff that if he could show that the ■ pencil indorsement upon the note was in the handwriting of Laffey "
It- is extremely doubtful whether the testimony would- have been admissible at any stage of the case. Its only materiality is in creating an inference that the card was in the possession of the bank. But, assuming that the witness would have testified that the pencil indorsement on the note was in the handwriting of Laffey, which is the view most favorable to the plaintiff, it does not follow that Laffey had the card in his possession when he made that indorsement. It is true he testifies that the note was not in his possession from the time it matured “ until Mr. Howard brought it to my window,, making this claim that it had been improperly protested.” But. assuming that Laffey did make the indorsement, he might have made it at the time last mentioned; at any rate, as already stated, it was eonóeded that the memorandum was not upon the note at the time of the protest, and that being so, it must have been put there after that time, and Laffey might have received the inforipation necessary to make the memorandum from many sources other than the card. The inference that he got it from the card is, therefore,, too speculative, problematical, uncertain and remote to render the evidence competent or of probative force. For this reason it was inadmissible and properly excluded.
I think, therefore, that the judgment and order appealed -from are right and should be affirmed, with costs.
Judgment reversed, new trial ordered, costs to appellant to abide event.