National Ulster County Bank v. Madden — 4 N.Y. St. Rep. 1

Majority

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National Ulster County Bank, App’lt, v. Michael J. Madden, Resp’t.

(Supreme Court, General Term, Third Department,

Filed June, 1886.)

Headnote

1. Evidence—Bills and notes—When abstract or check admissible to PROVE ALTERATION-NOT WITHIN THE RULES EXCLUDING MEMORANDA.

Where the defendant was sued upon his indorsement upon certain separate checks of different dates and his defense was that the words and figures, “ payable January 32, ’83,” were fraudulently inserted in each check after defendant had made his indorsement and delivered the checks. He testified to these facts and under objection and exception was permitted to testify that at the time he endorsed each check and before he delivered . it, he made an entry in a book which he kept for the purpose; of the date, amount, maker, endorser, time and place of payment of every check. He produced the book and under objection read these entries with respect to every check, testifying that these entries corresponded with each check as it stood when he endorsed it. Held, that the entries were competent evidence and properly received. Guy v. Mead, 22 N. Y., 462 , followed.

2. Same—Corroborative evidence admissible.

The truth of the defendant’s testimony denying that the words fixing a future day of payment were in the original checks was contradicted by the checks themselves, and later, by the testimony of the drawer. Held, that any relevant circumstance corroborative of the defendant’s testimony was admissible and this evidence being corroborative is admissible.

8. Same'—Instruction to jury.

The court was right in> holding and instructing the jury that the single question upon which their verdict depended was whether or not the check . had been altered.

' Appeal from a judgment in favor of defendant entered upon the verdict of a jury at the Ulster circuit.

M. Schoonmaker and F. L. Westbrook, for app’lt; F. S. Wood and A. Schoonmaker, for resp’t.

The defendant was sued upon his indorsement upon eighteen separate checks of different dates, of seventy-five dollars each. Ail are similar to No. 1, of which the following is a copy:

No. 1. Rondout, N. Y., October 18, 1882.

The National Bank of Rondout.

Pay to the order of M. J. Madden, seventy-five dollars.

Payable January 22, ’83.

$75.00. S. M. FOWKS.

H. F., Att'y.

Indorsed : M. J. Madden.

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The sole defense was that the words and figures “payable Jan. 22, ’83,” and similar words and figures in each of the other checks were fraudulently inserted, after the defendant had made his indorsement and delivered the check. The defendant testified that when he indorse'd and delivered the checks, none of them contained such words and figures, and that he never consented to such alteration. He also testified that in this respect his recollection was clear and positive. He was permitted, in opposition to the objection and exception of the plaintiff, to testify that at the time he indorsed each check, and before he delivered it, he made an entry in a book, which he kept for the purpose, of the date, amount, maker, indorser, time and place of payment of every check. He produced the book and, the objection of plaintiff being overruled, read these entries with respect to every check. He testified that these entries corresponded with each check, as it stood when he indorsed it. The admissibility of this evidence is here for review. No point is made with respect to the manner in which the entries were proved, but their competency as evidence, whether read or described, is challenged. Their materiality is conceded. We think they were competent.

In Guy v. Mead ( 22 N. Y., 462 ) the question was whether an indorsement upon the promissory note in suit was made February, 1849, or February, 1847. 'If on the earlier date, the statute of limitations was a bar. It was conceded that the indorsement was made when the payment was made, and there was a suggestion that the date had been altered. A witness was called in order to establish the later date; he testified that he, on the 1st of April, 1848, computed the interest upon the note, and he produced the original paper containing his figures. No account was therein 'stated of the indorsement in question; but assuming theie was then no such indorsement, the computation was complete. The witness testified that, though he had no recollection, he did not doubt that the indorsement did not then exist. He was not permitted to read the paper in evidence, and the court of appeals held that to be an erroneous ruling. It is true that that case differs from this in the single fact that, independently of the paper, the witness had no recollection, of the then non-existence of the writing in dispute upon the note. But the court does not place its decision upon that ground. The court remarks: “If this computation of interest was actually made, as stated, in April, 1848, for the purpose of ascertaining the amount due on the note, the memorandum of it then made is one of the most satisfactory pieces of evidence which could be adduced as to the existence of the indorsement. * * * It furnishes writ

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ten evidence of the most authentic character, * * * more persuasive than any amount of oral statement.”

The case cited and the case at bar are clearly distinguishable from the many cases in.the books, some of which are reviewed in Waldele v. New York Central and Hudson River Railroad Company ( 95 N. Y., 274 ), in which it is held that an oral or written narrative of a transaction already past is not admissible. It is plain that the subsequent declaration of a fact is no part of the fact itself. The case is also distinguishable from that class of cases in which a memorandum, sworn to have been truthfully made, is used as a substitute for a lost memory, or in which any memorandum is used to refresh a failing recollection.

This abstract is from the face of the check itself. A declaration or memorandum of a transaction, unless it is the spoken or written part of the transaction itself, and thus the res gestee, proceeds from the memory. This memorandum did not so proceed. The original face of the check is the question in dispute. Suppose the defendant, with the check before him, and before he delivered it, had made an exact copy,of it. The check itself contributes its face, and the defendant transcribes it. The contribution and transcription are simultaneously made, while the check is still a true check. Have we not here something like the res gestee of the true qheck itself ? A true copy diners from a true abstract only in degree. If a photographic copy had been taken, it would probably have been admissible. Cozzens v. Higgins, 3 Keyes, 206. Could not the stub of a check be read as evidence of the alteration of the check itself and as part of the res gestee of the transaction of making the original check? If so, this abstract made upon indorsement is the res gestcB of the indorsement. The defendant, while the check was before him, examined it and at the same time wrote this abstract of its face. The abstract thus becomes part of the res gestee of his examination. Now, it may be true enough that the indorsement is not in question, and that the defendant’s examination of the check is not in question, but it does not thence follow that the res gestee of either are immaterial; the indorsement and examination are evidentiary facts, in which the fact required, namely, the true face of the check, could not fail to speak the truth of itself, and that truth then and thus spoken is what we seek. But upon whatever ground we place it, the evidence is obviously of so high a character that it ought to be received, and we are satisfied that it does not come within the exclusion of the rules relating to memoranda used to supply or refresh the memory.

Again, the truth of defendant’s testimony denying that the words fixing a future day of payment were in the

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original checks, was contradicted by the checks themselves, and later by the testimony of Fowks. Any relevant circumstance corroborative of the defendant’s testimony was admissible. Platner v. Platner, 78 N. Y., 90 .

The court properly held and instructed the jury that the single question upon which their verdict depended was, whether or not the check had been altered ?

If the check, when delivered to the drawer with the indorsement of the __ defendant, was a complete instrument in the ordinary form, no right existed in the drawer, without the consent of the indorser, to insert words of future day of payment, even though there was left a blank space large enough for the purpose.

The maker or indorser who delivers his note or check to a third party does not thereby authorize him to fill existing blanks therein unless it is obvious that such blanks must be filled to make the note or check operate as the instrument for which it was intended. Weyerhauser v. Dun, 100 N. Y., 150 . This rule makes some of the objections urged by the appellant unimportant. ‘ We have examined them ail and find none which call for a reversal of the judgment.

The judgment should be affirmed, with costs.

Bockes, P. J., and Parker, J., fconcur.