Matthews v. Hill — 165 A.D. 672

Majority

p. 672

Albert Matthews, Respondent, v. Fred Hill, Appellant.

Third Department,

January 6, 1915.

Headnote

Conversion—cutting hay from leased farm — proof by plaintiff of landlord’s ownership — evidence—handwriting.

Where the lessee of a farm sues for the conversion of hay cut therefrom, the burden of proof is upon him to show his right to the hay by establishing his landlord’s title to the premises.

p. 673

The question of title to the premises being only incidentaBy involved in such action, the fact that the date of a deed made and delivered is one day later than the date of the certificate of acknowledgment, is of no consequence and the deed was admissible as evidence.

One famüiar with another’s handwriting and who has seen her write may testify that a signature to a lease in evidence was hers.

Evidence offered by the defendant tending to show that he had cut hay from another lot on the same farm, about which there was no'controversy was irrelevant and immaterial and properly excluded.

Appeal by the defendant, Fred Hill, from a judgment of the County Court of St. Lawrence county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of February, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

James J. McNeil, for the appellant.

Warren O. Daniels, for the respondent.

This action was brought to recover the sum of seventy-five dollars for damages alleged to have - been sustained by the plaintiff through the conversion of a quantity of hay by the defendant. The case was submitted to the jury upon a charge to which there were no exceptions and the jury found a verdict in favor of the plaintiff for forty-six dollars, upon which judgment has been entered, and the defendant appeals to this court from such judgment and from an order denying a motion for a new trial. The complaint alleged that the plaintiff was “the owner in possession and entitled to the immediate possession of a certain quantity of hay, to wit, about five tons, grown upon a certain lot of about ten acres located at Blake, town of Parishville, N. Y., and being a part of the farm known as ‘ The McNeil Farm,’ ” and it appeared upon the trial that this lot was known as the Thayer lot. It was claimed on the part of the plaintiff that the defendant cut and removed the hay from this lot; and the answer set up a general denial, and alleged that the premises in question belonged to the estate or

p. 674

heirs of one Malcolm McNeil, and were in the lawful possession of one William McNeil, and that the acts charged against the defendant were committed under the authority of said William McNeil. The defendant made no effort to establish these facts upon the trial, but urges upon this appeal certain alleged errors on the part of the court in the receipt and rejection of evidence.

The plaintiff assumed the burden of showing his right to the hay in question by establishing title to the premises in his lessor, and to this end offered in evidence a certain deed of Mary McNeil to Mary J. McG-arrity. The defendant urges that this deed was unacknowledged and not entitled to be recorded, and that it was improperly admitted in evidence by its mere offer and presentment. If the premise were established, it might well be that there would be a question as to the propriety of the introduction of this deed, but the fact is that the deed is duly acknowledged. The real defect is that the deed bears the date of February 26, 1910, while the certificate of acknowledgment bears date of February twenty-fifth of the same year, which is so obviously a mere clerical or scrivener’s error that it is not worth while to. give it any serious consideration. No one suggests that the deed was not in fact made and delivered; it is executed with all the forms necessary, and the mere fact that some one erred in the dating of the deed or the acknowledgment is of no consequence, and clearly not in a case of this character, where the question of title is only incidentally involved.

The second matter urged is that the court erred in receiving in evidence the lease claimed to have been made by Mary McG-arrity to the plaintiff of the premises in question, on the ground that the' witnesses were not qualified to testify to her signature.. Two witnesses testified that they were familiar with her handwriting and had seen her write, and that tlie signature attached to the lease was that of Mary McG-arrity, and we fail to discover any error in this regard.

The defendant offered evidence tending to show that he had cut hay from a lot known as the Backus lot, but this testimony was excluded and the defendant urges that he was entitled to have such testimony appear. There was no controversy about the hay from the Backus lot; the plaintiff does not claim any

p. 675

thing in that regard and the only controversy was over the hay taken by the defendant from the Thayer lot. The evidence offered by the defendant was, therefore, irrelevant and immaterial to any question before the court and was properly excluded.

Equally without merit is the contention that the court erred in permitting counsel to argue before the jury that the defendant had shifted his defense; and we are clearly of the opinion that the court did not err in refusing a new trial.

The judgment and order appealed from should he affirmed, with costs.

Judgment and order unanimously affirmed, with costs.