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Phillips v. Lindner

16 N.Y.S. 367 Court N.Y. Gen. Term Decision date 1891-11-13 English

Delivered by Van Brunt, P. J.

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p. 367
Phillips et al. v. Lindner.
(Supreme Court, General Term, First Department.
November 13, 1891.)

Headnote

Negotiable Instruments—Actions—Forgery—Evidence—Letters.
In an action against an indorser of a note, who denies liability on the ground that his signature was forged by the maker, a letter purporting to have been written to him by the maker, acknowledging the forgery, is not admissible in evidence. Smith v. Society, 25 N. E. Rep. 197 , 123 N. Y. 85 , distinguished.
Appeal from circuit court, New York county.
Action by Helen Phillips and Lewis Schoonmaker against Jacob Lindner. There was a verdict for defendant, and from a judgment thereon, and order refusing a new trial, plaintiffs appeal.
Judgment and order reversed.
Argued before Van Brunt, P. J„ and Daniels and Ingraham, JJ.
Mooney & Shipman, (Edmund Luis Mooney and Andrew J. Shipman, of counsel,) for appellants. William C. Kellogg, for respondent.

This action was brought to recover upon a promissory note made by one George J. Lindner to the order of one George Morel], and indorsed by said Morell, and claimed to have been indorsed by the respondent, Jacob Lindner. The sole defense of said Jacob Lindner was that his alleged indorsement of the note was a forgery. Upon the trial of this action the plaintiff gáve certain evidence tending to prove that the indorsement upon the note in question was made by the defendant, Jacob Lindner. The respondent denied that the indorsement upon the note was his signature, and endeavored to show that it had been forged by his son, the maker of the note. Among other evidence which was introduced to support this claim was a letter to him, dated about a month before the note fell due, purporting to have been written by his son, admitting the forgery. The introduction of this letter was objected to as incompetent, immaterial, and irrelevant, and as not binding upon the plaintiff, and hearsay evidence. These objections were overruled, the letter admitted in evidence, and exception taken. This seems to have been clearly error. We are referred to the case of Smith v. Society, 123 N. Y. 85 , 25 N. E. Rep. 197 , as supporting this ruling, but an examination of that case shows that it has no application whatever to the one at bar. The question involved in that case was as to whether insurance was obtained resulting from a preconceived design to defraud the insurance company, and acts and declarations of the party insured were admitted for the purpose of establishing that in

p. 368
tent. In the case at bar no such issue whatever was presented; no question of intent was involved. It was a question of fact as to whether the defendant had or had not indorsed this note. The other case (Magee v. Osborn, 32 N. Y. 669 ) has not the slightest application to the question presented by the exception under consideration. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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