Union Trust Co. v. Leighton — 83 A.D. 568

Majority

p. 568

Union Trust Company of Rochester, Respondent, v. Emile Leighton and Herman R. Murray, Defendants, Impleaded with Emile Seelig, Appellant.

Headnote

Evidence—declarations of a maker of a note tending to contradict his testimony that the note was increased after its indorsement—objection that a witness must be asked on cross-examination as to statements made by him before he cam be contradicted by proof thereof— it cannot be first taken on appeal.

In an action brought by a bona fide holder of a promissory note to recover thereon, one of the defendants, an indorser on the note, interposed the defense that the note, as indorsed by him, was for §200, and that before it came into the plaintiff’s possession the maker of the note raised it to §2,500.

The maker of the note was sworn as a witness for the plaintiff, and gave evidence tending to defeat this defense.

Held, that evidence of declarations made by the maker while the note was still in his possession, tending to establish the defense interposed by the indorser, was not competent as original evidence to defeat the plaintiff’s claim;

That such evidence was, however, competent for the purpose of contradicting the maker’s testimony;

That the obj ection that the contesting defendant did not, upon his cross-examination of the maker of the note, lay the foundation for the introduction of the evidence in question, could not be urged for the first time on appeal, as, if it had been urged at the trial, it would have been possible for the contesting indorser to cure the objection.

Appeal by the defendant, Emile Seelig, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 24th day of November, 1902, upon the verdict of a jury, and also from an order entered in said clerics office on the 24th day of November, 1902, denying the said defendant’s motion for a new trial made upon the minutes.

Leon Kronfeld and I. Henry Harris, for the appellant.

Elbridge L. Adams, for the respondent.

This action was brought by plaintiff as the holder for value and before maturity to recover the amount of a promissory note for the purported sum of $2,200, made by the defendant Leighton and indorsed by the defendant Seelig and one Murray.

The defense which the' defendant Seelig sought to establish upon

p. 569

the trial was that he indorsed a note for $200 made by the defendant Leighton, and that the note sued upon was manufactured by raising said note to a purported one for $2,200 ; that this was done by the defendant Leighton and before it came into plaintiff’s possession.

The only question which we deem it necessary to consider is raised by the exclusion by the learned trial court of evidence, offered in behalf of appellant, of certain alleged statements made by the defendant Leighton at about the time plaintiff’s note is said to have been made. We think that said exclusion was such error as calls for the reversal of the judgment appealed from and for a new trial.

The note in question bears date May 17, 1902. The appellant Seelig claimed and gave evidence tending to show that upon that day he in reality indorsed a note for the benefit of Leighton for the sum of $200, and that two days later Leighton brought said $200 note back to him and asked him to indorse a larger one for the sum of $2,500. . This evidence was permitted without objection by plaintiff, and tended to establish the defense that the note given upon May seventeenth was for $200 and not for $2,200, as is now claimed in behalf of plaintiff.

Subsequently said appellant called a witness named Hayes, who testified that he was at appellant’s stable on May nineteenth, and then, upon his examination, the following took place: “ Q. Did you hear a conversation between Leighton and Seelig on the 19th of May, 1902? [Objected to. Sustained. Exception.] Q. Did you see that note for $200, which Seelig had endorsed on the 17th, in the hands of Leighton on the 19th of May, 1902 ? A. I can’t say I did. He had some papers in his hand. Q. Was anything said in reference to that note-? [Objected to as immaterial. Sustained. Exception.] Mr. Kronfeld: I desire to prove that Leighton at that time asked Seelig to endorse a note for $2,200, and that he would then give him back the $200 note. Q. Did Leighton ask Seelig to endorse a note for him for $2,200, and if he gave him that note he would give him back the note for $200, which he had endorsed for him on Saturday ? [Objected to as immaterial. Sustained. Exception.] ”

Counsel for appellant argues, in the first instance, that these alleged declarations of Leighton tending to show that Seelig indorsed a note

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for $200 and not for $2,200 would have been competent original evidence to establish his defense in this action. We disagree, however, with this contention. We think that the declarations of a maker of a note, not any part of the res gestm, would be entirely incompetent to destroy the claim and rights of a subsequent purchaser and holder for value, and without notice or dishonor of a promissory note, and that while the objection was made upon the ground of immateriality, the ruling might be sustained so far as this purpose is concerned because of the general incompetency‘of the proffered evidence. (Paige v. Cagwin, 7 Hill, 361 ; Clews v. Kehr, 90 N. Y. 633 .)

In addition, however, it is urged that this evidence was competent for another reason. The defendant Leighton was a witness for plaintiff, and had given evidence in its behalf tending to contradict the defense discussed, that the note indorsed for him by appellant was for the sum of $200 instead of $2,200. The evidence offered and excluded tended to contradict this evidence, and in its nature was competent for that purpose. It may be urged, however, that appellant’s counsel had laid no proper foundation for the introduction of the excluded evidence upon his examination of Leighton. The answer to this is that no such objection was urged to its introduction. While appellant’s counsel in offering the evidence may especially have had in mind his theory that it was competent as original testimony, the record still shows that he offered it generally, and not for any restricted purpose. Such general offer imposed upon plaintiff’s counsel the duty of making appropriate objections, and if the objection had been interposed that the proper ground for the introduction of the evidence had not been laid for the purpose of impeaching Leighton, it would have been possible to cure such objection. We believe, therefore, that its exclusion under all of the circumstances as disclosed by the record was error, for which a new trial must be granted. (Clews v. Kehr, supra.)

All concurred; Adams, P. J., not sitting.

Judgment and order reversed and new trial granted, with costs to the. appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.

Cases cited

Clews v. Kehr 90 N. Y. 633 N.Y. 1882-10-10 p. 570