McKay v. Lasher — 19 N.Y. St. Rep. 815

Majority

p. 815

Mary McKay et al., Respt’s, v. Allen Lasher et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed November 20, 1888.)

Headnote

1. Evidence—Of genuineness of handwriting—Laws 1880, chap. 36.

Comparison of a disputed writing, with any writing proved to the satisfaction of the court to be genuine, shall be permitted to be made by witnesses in all trials and proceedings, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute. Laws 1880, chapter 36. Held, that it was not necessary that the genuineness of the writing used as a standard for comparison should be established by the direct evidence of one who saw it written, but that it should be proved to the satisfaction of the court.

2. Same—Expert witness may give grounds of his opinion.

Held, that it was not error to allow an expert witness to explain on a blackboard to the jury the reasons for his opinion.

3. Same—Competency of subscribing witness to conveyance- may be inquired into—Code Civ. Pro., § 93G.

It is provided by Code Civil Procedure, section 936, where it appears that the proof of a conveyance was taken upon the oath of an incompetent witness, the conveyance shall not be received in evidence until established by other and competent evidence. Held, that it was proper to allow evidence tending to show the incompetency of a subscribing witness to a conveyance.

Appeal from a judgment entered on the verdict of a jury at the Ulster county trial term.

M. Schoonmaker, for app'lts; DeWitt Griffin, for resp’tsl

The judge’s charge is not printed in the-case and there are no exceptions thereto.

There was no request to direct a verdict for defendants, and there was no motion for a new trial. Therefore we-have before us only the exceptions to evidence.

The first arises under chapter 36, Laws 1880, which allows comparison of a disputed writing “with any writing-proved to the satisfaction of the court to be genuine.” The defendants insist that such proof of genuineness must be by admission or by the direct evidence of one who saw the person write the offered writing.

This law introduced a new rule, which had not existed here, though it had in Massachusetts and some other states. Here the rule was that the disputed writing might be compared with other writings which had been given in evidence for other purpose than comparison. Miles v. Loomis, 75 N.Y., 288 . Such writings under the old law might have been proved by the testimony of persons familiar with the-handwriting. When thus proved and admitted in evidence-they could be used in comparison.

This statute allowed writings to be proved merely for the purpose of comparison. . But there is nothing in the statute specifying the mode of proving them. Why may they not be proved in the same manner in which any other writing might have been proved before the act ? Furthermore they are to be proved “to the satisfaction of the court.” This seems to put the matter exclusively in the judgment of the trial court. Peck v. Callaghan, 95 N. Y., 73 . Unless possibly in a casé where there was an entire absence of evidence. That is not this case.

It is true that in Massachusetts, where there is no statute-on the subject, it was stated in a criminal case, that a writing to be used for comparison (not otherwise used in evidence) must be proved by direct evidence of the signature- or by equivalent evidence. Commonwealth v. Eastman, 1 Cushing, 217. But the question was not involved in the case; - nor do we find it to be supported by the authorities-cited. Moody v. Rowell, 17 Pick., 490 ; Richardson v. Newcomb, 21 id., 317; or by Martin v. Maguire, 7 Gray, 177 .

The next objection is that an expert witnéss was allowed to explain upon a blackboard his meaning and the reasons for his opinion. We think there was no error in this; Of course the whole class of expert evidence is exceptional. And as experts are to give opinions, it is right that they should explain the reasons for them.

The defendants urge that there was error because the-court excluded the statement made by James Clark to his wife, at the time of the execution of the alleged deed toCranch, that he owed Cranch and wanted to secure him..

p. 817

The defendants say that plaintiff had proved that Todd paid Clark rent up to his death, and that by showing this deed to be in fact a mortgage, the fact of paying rent to Clark would be explained. But on looking at the case, we find that Todd was defendant’s witness, and that on their behalf he testified that he occupied the place till Clark’s death, and paid rent to Clark. We think the offer was properly excluded.

The controversy in the case was as to the genuineness of a deed from James Clark and wife to Pierre Cranch, dated May 4, 1875. This deed purported to have been acknowledged before Joseph C. Lawrence, a notary public, May 4,. 1875. But it appeared that Lawrence was not then a notary public. Lawrence was also a subscribing witness, and as such on the the 13th of June, 1885, he proved the will before a notary. On this proof the will was received in evidence.

To discredit this proof the plaintiffs gave evidence tending to show that in 1882, and subsequently, till his death in February, 1886, Lawrence was of feeble body, of weak mind* and subject to delusions, and unfit for business. The object of this was to show that Lawrence was an incompetent witness. The section of the Revised Statute, to which the-plaintiffs refer, was repealed by chapter 417, Laws 1877. But its substance is now found in the Code of Civil Procedure, sections 935 and 936. This latter section provides that if it shall appear that the proof of a conveyance was taken upon the oath of an incompetent witness, the conveyance-shall not be received in evidence until established by other and competent proof. It seems, therefore, that it was proper to give evidence tending to show that, when Lawrence, in June, 1885, proved this deed, he was mentally incompetent to act.

Again, the defendants claim that there was error in refusing to admit proof that subsequent to the date of the deed, Clark said he owned no real estate. The plaintiffs claim as heirs at law of James Clark (or, if need be, of Patrick, his. father). To defeat their title by statements of James Clark that he owned no real estate would not be proper. Kor do we think that such statements were so connected with the alleged deed that they could be taken as evidence of its genuineness. They did not in any way point to or recognize the alleged deed.

These are the objections raised by the defendant. On examining them we see no error.

Judgment affirmed, with costs.

Landon and Ingalls, JJ., concur.