17 N.Y.S. 552 | N.Y. Sup. Ct. | 1891
This action is brought to enforce against certain real estate, devised to the defendants Chambers in and by the last will and testament of Louisa F. Fardon, an indebtedness claimed to be owing by the testatrix at the time of her death to her sister, the plaintiff. That alleged indebtedness is presented in the form of three promissory notes, as follows, viz.: One, dated May 1,1879, for $253; another, dated May 1,1880, for $280; and another, dated July 15, 1880, for $521.50. The complaint contains all the necessary averments to bring the cause within the provisions of the Code of Civil Procedure relating to and regulating such actions. Sections 1843-1850. The parties defendant are Mrs. Chambers, the daughter of the testatrix, to whom a life-estate in the realty was given; William F. Chambers, a remainder-man; and William F. Fardon, a son of the testatrix and an annuitant, whose annual allowance is charged upon the land. The suit was begun against the defendants Chambers on October 27, 1886. In August, 1889, as appears from a paper, (not marked in evidence, but which I understood on the trial was to be put in, so that the defendants might raise the question of the applicability of the statute of limitations,) Fardon was brought in as a party defendant by supplemental summons. The testatrix died December 25, 1880. The plaintiff, to establish her case, produced the three promissory notes, the making and delivery of which were denied by the answers. Those notes were in the plaintiff’s possession before the testatrix died, and the plaintiff was permitted to testify to the fact under the decision in Simmons v. Havens, 101 N. Y. 427, 5 N. E. Rep. 73. Further, she offered in evidence, to prove the signature to the notes, a certain bond made and signed by Louisa F. Fardon. The defendants’ counsel is in error in stating that this bond was not put in evidence. It was admitted on the examination of Mr. Ames, and was made the standard of comparison, although by some oversight it is not marked or recorded as being in evidence. I distinctly remember ruling that it be marked as an exhibit in evidence, but not the mortgage accompanying it, and that is perhaps the reason the omission has occurred. The record should be corrected, for the whole case was tried
The act of 1880, c. 36,
Laws 1880, c. 36, provides: “Section 1. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses in all trials and proceedings; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. Sec. 3. This act shall take effect immediately. ”
Laws 1888, c. 555, provides that Laws 1880, c. 36, § 2, “ is hereby amended so as to read as follows; ‘Sec. 3. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person claimed on the trial to have made or executed the disputed instrument or writing shall be permitted, and submitted to the court and jury in like manner. But nothing within contained shall affect or apply to any action or proceeding heretofore commenced or now pending.’ ”