Hyperlawhypertext legal database State Bank v. Greenberg 95 N.Y.S. 503

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State Bank v. Greenberg

95 N.Y.S. 503 Court N.Y. App. Term Decision date 1905-10-27 English

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p. 503
STATE BANK v. GREENBERG et al.
(Supreme Court, Appellate Term.
October 27, 1905.)

Headnote

Appeal—Bills and Notes—Action—Evidence.
In an action on a note, where the defense is forgery, and there is a flat contradiction as to the signature to the note, and samples of the signatures of the defendants procured at the trial are not introduced in evidence, and certain witnesses whose evidence might throw light on the question are not produced, a judgment in favor of the plaintiff will be reversed, and a new trial granted.
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by the State Bank against Barnett Greenberg and another. From a judgment in favor of plaintiff, defendants appeal.
Reversed.
Argued before SCOTT, P. J., and BISCHOFF and FITZGERALD, JJ.
Joseph Feinson, for appellants.
Max Silverstein, for respondent.

In our opinion the ends of justice would be best served if this case were to be retried. The action is upon a promissory note, and the defense is forgery. Obviously there is flat perjury on one side or the other. The authenticity of the note is upheld by a single witness, in whose testimony is to be found much inconsistency and improbability. ■ Witnesses whose evidence might throw light upon the question are not produced, and some of the exhibits used on the trial are not attached to the return. Particularly do we miss samples of the handwriting of the two defendants. The testimony of plaintiff’s witness is that the note was signed by one of the defendants in the witness’ presence. Upon the trial both of the defendants were required to write their own names and that of their firm, and did so. The samples thus written were examined, as the record shows, by both counsel, but were apparently not put.in evidence and are not attached to the return. In short, in the face of the flat contradiction as to the

p. 504
signature upon the note, the most ordinary tests commonly applied in such cases were not resorted to.

The judgment will be reversed, and a new trial granted, with costs to abide the event.