Schwartz v. Oppold — 56 How. Pr. 156

Majority

p. 156

NEW YORK COURT OF APPEALS.

Anton Schwartz et al., plaintiffs and appellants, agt. William Oppold et al., defendants and respondents.

Headnote

Appeal— Order of general term, New Yos'h marine court, reversing order of trial judge granting new trial is appealable to common pleas— When determination by general term marine ' court conclusive — Promissory note—evidence under general denial — when objections to proof must be made—too late to object to verification of pleadings upon the trial.

Where the general term reverse an order of the special term granting a new trial pn the ground that the verdict is against evidence the determination by the general term is conclusive.

Where the complaint sets forth a note payable on demand, with interest, it is competent for the defendant, under an answer containing a mere general denial, to show that the note had been altered since its execution by adding the words “with interest.” This alteration, insufficiently explained, vitiated the note.

Objections to proof must be specifically made at the trial in all cases where they might then have been obviated by an amendment of the pleadings, and it is too late to object to the verification of the pleadings upon the trial.

The conflict in the law as laid down in Boomer agt. Boon, as reported in 6 Thompson & Cools, Supreme Court Beports, 645, and in 6 Hun, 645 , settled.

An order of the general term of the New York marine court reversing an order of the trial judge granting a new trial amounts to an affirmance of the judgment and is, consequently, a final determination by that court sufficient to make the order appealable to the New York common pleas.

Decided September, 1878.

The plaintiffs sued," in the ¡New York marine court, to recover upon a promissory note made by the defendant Oppold and indorsed by his wife who was made codefendant.

p. 157

The complaint1 declared upon a note as payable on demand, until interest. The defendants, by way of answer, interposed a mere general denial. Upon the trial they were allowed to prove, under objection, that the note had been altered since its execution by adding the words “ with interest,” and that the special provision by which the indorser charged her separate estate had been added after she had signed her name.

The jury found for the defendants, holding that the alterations charged had in fact been made. The trial judge (justice Goepp) subsequently granted a new trial upon the authority of Boomer agt. Koon, which case, as reported in 6 Thompson e& Cook, Supreme Court Reports, 645, holds that “the defense that a note had been altered after execution was not admissible under a general denial” (Opinion iy Mullin, J.). The same ease is reported as holding directly the opposite in 6 Hun, 645 . (Opinion by E. D. Smith, J., concurred in by Morgan, J., and the opinion of Mullin, J., before referred to, is here reported as a dissenting opinion.)

From this order the defendants appealed' to the general term of the marine court, which held (Alker, Shea and Mo Adam, JJ., presiding) that the order granting the new trial was erroneously made and that the verdict must be allowed to stand. From this order of reversal the plaintiffs appealed to the Hew York common pleas, where it was claimed that a mere order granting a new trial was ¿not appealable to that court. The general term of the common pleas (Daly, O. J., ¡Robinson and Larremore, presiding) held, June 4, 1877, per Halt, C. J.: “ The effect of the order and decision of the general term of the marine court are to affirm the judgment. As it reversed the order granting the new trial it is, consequently, a final determination in the marine court.” The common pleas, after argument, affirmed the marine court, general term, and, on account of the conflicting report of the case of Boomer agt. Koon {supra), allowed the case to go to the court of appeals, and that court has disposed of the matter in the following opinion:

p. 158

Samuel Ha/nd and Hern'y Wehle, attorneys for plaintiffs and appellants.

Peter Qodk, attorney for defendants and respondents.

The question whether the verdict was against the weight of the evidence cannot be considered on this appeal. The general term having reversed the order at special term granting a new trial must have been of opinion that the verdict was not against the weight of the evidence. ' That question the general term had power to decide, and its determination thereon is final.

The only points - before us are those which arise on the exceptions taken at the trial. The exception mainly relied upon was to the admission of the evidence of the- defendant, William Oppold, to' the effect that the words “ with interest,” which appear at the end of the note given in evidence, were not there when he signed it. The objection taken was that no such defense was pleaded.

The complaint* set forth a note payable on demand with interest. The answer of the maker, William Oppold, contained a general denial. The note put in evidence purported to be payable with interest as alleged in the complaint. It was clearly competent for the defendant under his general denial to controvert this proof by showing that the note had been altered since its"execution by adding the words “ with interest.” This alteration, which was established 'by the finding of the jury, clearly destroyed the effect of the note as evidence and precluded any recovery thereon in the absence of sufficient explanation of the alteration.

The defendant also gave evidence to the effect that the special indorsement by which the defendant, Louisa Oppold, charged her separate estate had been added after she had signed. A general objection was taken to the question put to her whether the writing above her signature was there when she signed. The question was material and admissible as against a general objection.

p. 159

If it was intended to raise any question .as to its admissibility under her answer the objection should have been specifically taken; and in that case it could have been obviated by amendment. Ho such objection was interposed. The only question raised with respect to the answer of the defendant, Louisa Oppold, was that it had not been properly verified. That objection was not a proper one to be raised at the trial.

The questions of fact, whether the note and indorsement had been altered after the defendants had affixed their respective signatures, were submitted to the jury on conflicting evidence and they found for the defendants.

The general term of the marine court having approved the verdict we cannot interfere with it; and there being no valid exception in the case the judgment must be affirmed.

Church, C. J., Forger and Andrews, JJ., concur; Miller and Earl, JJ., absent.