22 N.Y.S. 546 | New York Court of Common Pleas | 1893
Lead Opinion
The action was brought upon a promissory note, under seal, for $5,000, signed by defendant, dated December 11, 1884, payable to the order of plaintiff six months after date. The complaint alleged the making and delivery of the note by defendant, and that the said note was under his hand and seal. The answer was a general denial, no consideration, and material alteration by affixing a seal without the consent of the defendant. The testimony was conflicting upon all the issues, and the jury found for the defendant. Their verdict should not be disturbed upon the facts. It is claimed, however, by appellant that there was an error in the charge of the court and in rulings upon evidence, but upon examination of the record that does not appear to be the case.
The principal error alleged is the instruction to the jury that the plaintiff was bound to establish by a preponderance of evidence that the seal was not attached after the signature to the note, and it is claimed that this was an instruction that the burden lay upon plaintiff to disprove an affirmative defense, viz. the alteration of the
Next in importance is the exception which brings up the alleged error in charging the jury that the testimony of the plaintiff might have been taken at his house. There was evidence to show that, owing to the plaintiff’s age and state of health, the excitement of a trial would be very prejudicial to him, and it is contended that the jury, and not the court, were the judges as to whether or not his testimony could be taken at his house. It is sufficient to say of this exception that the point now raised was not suggested by the exception, nor in any way brought to the notice of the court The testimony of the physician was solely as to the effect of the plaintiff’s attendance upon the trial, he being called “for the pur
The remaining exception to the charge presents no error. There was evidence that the plaintiff promised to pay defendant’s" brother $5,000 if defendant would release to his brother his interest in certain mortgages. The court properly instructed the jury, at defendant’s request, that, if they believed the promise was made, such promise and payment was the consideration for the release. There was no question but that the testimony warranted that conclusion, if the jury so believed; and so, whether that request for instruction be, taken in connection with any other part of the charge or not, it remains unassailable as a correct proposition. It did not exclude from the jury any of the evidence in the case bearing upon the consideration of the note in suit. The rulings as to the admission of testimony were correct. The question upon defendant’s defense of want of consideration was whether the note in suit was or was not given to defendant’s uncle, the plaintiff, to secure the repayment to him of an advance of $5,000, made to defendant’s brother in settlement of a litigation between the brothers. It was not immaterial for defendant to testify that he had never asked the plaintiff for a dollar in his life, and to show, on the other hand, that his brother had received altogether from the plaintiff large sums of money. This had a bearing upon the question whether plaintiff’s advance of $5,000 to the brother was a gift or a payment at defendant’s request. Had defendant, instead of his brother, been previously the regular recipient of bounty from the plaintiff, it would have had weight in determining whether he was now to be credited with the assertion that the sum of $5,000 was a gift to the brother, and not advanced on his account. The previous relation of all the parties to each other had a material bearing upon a controversy that arose out of family disputes and arrangements.
The judgment and order should be affirmed, with costs.
BISCHOFF, J., concurs.
Dissenting Opinion
(dissenting.) An accepted definition of the “burden of proof,” propounded by our own court of highest authority, is: “The obligation imposed upon a party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action to establish it by proof.” People v. McCann, 16 N. Y. 58, 66. By the law of this state the defense that a note has been altered Since execution is inadmissible under a general denial, and is available only by special plea. Boomer v. Koon, 6 Thomp. & C. 645. Conforming to the rule, the respondent advanced the defense affirmatively in his answer. If there be erasure, interlineation, or other blemish obvious on the face of the instrument when produced in, evidence by the plaintiff,—in other words, if there be no apparent alteration,—the burden is upon the defendant to prove the alteration. Meikel v. Savings Inst., 36 Ind. 355; Pullen v. Hutchinson, 25 Me. 254; Muckleroy v. Bethany, 27 Tex. 551;