Hutkoff v. Moje — 20 Misc. 632

Majority

p. 632

Nathan Hutkoff, Respondent, v. John Moje, Appellant.

(City Court of New York, General Term,

June, 1897.)

Headnote

1. Fraud — Misstatement as to import of a nóte — Bona fide purchaser. Where a party is induced to sign a negotiable instrument, by fraud, artifice, or deception, practiced upon him and relating to the nature of the instrument, and the maker signs innocently and under the belief

p. 633

that it is a contract of a different character, a bona fide purchaser for value and before maturity cannot recover upon the note, unless the maker was guilty of laches in omitting to read it or to ascertain, by some other means, its true nature and import.

8. Same — Knowledge of our language.

The maker of a note, who has been deceived as to its true import, is entitled to testify as to whether or not -he can read or write the English language.

Appeal by defendant from judgment on verdict for plaintiff, and order denying new trial.

Otto Kempner, for appellant.

Leventritt & Nathan, for respondent.

The plaintiff sues as indorsee from the payees of the note made by defendant, who defends upon the ground that the payees, by their agent, induced him to sign the note under fraudulent and false representations that the same was an instrument of an entirely different character, to-wit, a mere acknowledgment that he made a 'contract with them to put up the fixtures in his saloon.

The jury was charged that if they found that plaintiff obtained the note before maturity for value and in good faith, that their verdict must be for him notwithstanding any fraud that was committed against defendant, the maker, to which defendant excepted.

The court was requested by defendant, and refused, to charge, that if the defendant could not read nor write the English language, and after due precaution under the circumstances and without negligence on his part, was induced to sign the note sued upon, .believing that it was a paper of another character, and' signed it upon the misrepresentations of the agent of the payees in reliance upon this agent’s assurance that it was a paper of another character; then, notwithstanding the fact that the holder of the note is an innocent holder before maturity, their verdict must be for the defendant.

The charge made does not correctly state the law applicable to cases of this kind, and the request refused properly states the law upon the facts of the case.

p. 634

■The law of the state is, that where a party is induced to sign a negotiable instrument by reason of fraud, artifice or deception practiced upon him by another as to the nature of the instrument, and the maker signs the same innocently and under the belief that it was a contract of a different character, then there can be no recovery upon the note, although the holder may be an innocent purchaser for value before maturity, unless the maker was guilty of laches or carelessness in omitting, to read the same, or by some other means ascertaining the true nature and import of the instrument. National Ex. Bk. v. Veneman, 43 Hun, 242 , cited with approval, in Page v. Krekey, 137 N. Y. 313 .

It was also error not to allow defendant to answer his counsel’s question,, whether he could read or write English, and this was hot cured because one of his witnesses testified and he knew defendant could, not read or write English, for defendant had the right to have the jury hear his own testimony upon this all important question.

This judgment cannot be sustained upon the theory that the court would have been justified in ruling as matter of law, that defendant was guilty of negligence in signing the instrument.

Judgment and order reversed, with costs to appellant to abide the event. ' .

Schuchman, J., concurs; McCarthy, J., dissents.

Judgment and order reversed,. with costs to appellant to abide the event. '