Giberton v. Ginochio — 1 Hilt. 218

Majority

p. 218

Etienne Giberton v. Louis Ginochio.

Headnote

The execution of an instrument, not under seal, may be proved by the admission of tire party, although the instrument is attested by a subscribing witness who is not called, or his absence excused.

After the trial of an action in the Marine Court has commenced, the justice has no power to order an adjournment, except upon the consent of both parties, or for the reason that there is not time to conclude the trial at one session.

Appeal from a judgment of a justice of tbe Marine Court. This action was brought upon an agreement in writing to deliver wines, segars and merchandise. Tbe instrument was unsealed, and was as follows:

I hereby agree, and bave agreed, for value received, and on demand, to deliver to Pierre Saracco, or order, wine, segars and merchandise to tbe value of one hundred dollars.

New York, Feb. 24, 1852. L, Ginochio.

In presence of

John E. Monaghan.

(Endorsed.)

Pay to tbe order of E. Giberton, for value received. New York, March 25, 1852.

P. Sabaoco,

p. 219

Pay to tbe bearer, New York, July 28, 1855.

E. GibeRtoN.

Tbe cause came on for trial on October 16, 1855. A witness for tbe defendant being absent, it was consented in open court, by tbe attorneys for botb parties, to proceed in part witb tbe case, and that the trial should then be adjourned, and tbe deposition of tbe absent witness be taken and used as evidence in tbe cause; tbe deposition to be taken at tbe court-room, and tb« witness to be subpoenaed to appear for examination.

Tbe trial then proceeded. The plaintiff did not call tbe sub- # scribing witness to the instrument in suit, to prove its execution, nor did be offer any explanation of tbe absence of^bo witness. To prove the execution, be first called a witness who testified that be was acquainted witb tbe handwriting of the defendant. On being shown tbe instrument, be said that “ hs> did not think ” tbe signature was in defendant's bandwriting Tbe plaintiff then called a second witness, who testified that be called on defendant, produced tbe paper to him, and demanded tbe goods; that defendant admitted that be signed tbe paper,, and delivered it to Saracco, but refused to deliver the goods. Tbe defendant objected to tbe sufficiency of this proof, on th$ ground that the subscribing witness must be called, or bis ab sence explained; but tbe objection was overruled.

Other evidence being introduced, tbe trial was adjourned by consent, pursuant to tbe stipulation above mentioned, until October 18th.

On that day, defendant appeared witb bis counsel, and presented an affidavit that tbe witness in question had been duly subpoenaed, and bis fees paid. The witness not being present, tbe case was adjourned to tbe 20th, and an order to show cause why tbe witness should not be attached was granted. On tbe 20th tbe case was called, and an application was made on behalf of defendant for a -further adjournment, on tbe ground of defendant’s counsel being engaged in arguing a cause in tbe Superior Court, and on tbe ground of tbe absence of tbe witness.

p. 220

Diligence bad been used to serve him with tbe order, but be bad not been found. These facts were shown by affidavits. The application for an adjournment was refused, and judgment rendered for tbe plaintiff, from which defendant appealed. .

L. H. BulJceley, for tbe appellant.

Frederick Mice, for tbe respondent.

The justice did not err in'admitting proof of tbe confession of the defendant to tbe making of tbe note in controversy. Although tbe rule as to sealed instruments requires tbe production of tbe subscribing witness, yelyas to instruments not under seal, tbe strictness of that rule has been so far relaxed, in this state, as to permit the instrument to be proven by tbe confession of tbe party signing it. Hall v. Phelps, 2 John. R. 451 ; Shaver v. Ehle, 16 id. 201 ; Manri v. Heffernan, 13 id. 75 ; Henry v. Bishop, 2 Wend. 575 .

Tbe evidence in this case was tbe direct admission, of tbe defendant, that be bad signed tbe instrument in suit, and delivered it to Saracco.

Tbe contradiction between tbe two witnesses, as to tbe signature, was not fatal to plaintiff’s case. Tbe first witness only stated bis.opinion. It left a question for tbe justice to decide, with which we do not interfere.

There was no error in refusing tbe adjournment. There bad been one adjournment in pursuance of the stipulation, and we have held that tbe justice has no power to adjourn after com-u mencing a trial, without tbe consent of both parties, if be has time to conclude the case without it.

Judgment affirmed.

Cases cited

Henry & Emott v. Bishop 2 Wend. 575 N.Y. Sup. Ct. p. 220