Majority
p. 362Benjamin H. Tuthill, Resp’t, v. George W. Hussey and John H. Harriman, App’lts. (Supreme Court, General Term, First Department, Filed November 7, 1889.)
Headnote
Bills and notes—Alteration.In an action on a promissory note where the defense was a material alteration, the plaintiff and three other witnesses, who were not interested, testified that the words "with interest” were on the note before it was signed and defendants testified to the contrary. Held, that a verdict in favor of plaintiff would not be disturbed.
Appeal from a judgment in favor of plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial on the minutes.
Action on a promissory note given by defendant Hussey in part payment for a hotel. The main defense was that the note was materially altered after delivery in that the words “ with interest from date ” were added.
The plaintiff and three others, two of whom were disinterested, testified that plaintiff refused to accept the note unless it was drawn with interest; that one of them, an attorney who drew the note, added the words, after which Hussey signed it and took it out for Harriman’s endorsement, and upon his return delivered it to plaintiff. Defendants testified that the words were not on the. note when they signed it.
John H. Reid, for app’lts; Warren W. Foster, for resp’t.
The sole question in this case was whether the words " with interest’’ were written in the note sued upon before or after its execution, indorsement and delivery. A number of witnesses testified that these words were written in the note before
p. 363
it was executed, while the defendants testified to the contrary. It is apparent, therefore, that the question was purely one of fact The verdict was in favor of the plaintiff, and it wás fully supported by abundant testimony; indeed, after reading all the testimony carefully, I feel bound to say by the weight of evidence. There was not an exception in the case, and the question of fact was fairly and thoroughly presented to the j ury. It is difficult to believe that this appeal was taken with any hope of success. It is plainly without merit.
The judgment and order denying a new trial should be affirmed, with costs.
Van Brunt, P. J., and Daniels, J., concur.