Phillips v. Lindner — 41 N.Y. St. Rep. 295

Majority

p. 295

Helen Phillips et al., App’lts, v. Jacob Lindner, Resp’t.

(Supreme Court, General Term, First Department,

Filed, November 13, 1891.)

Headnote

Evidence—Letters of third person.

In an action upon a promissory note against an alleged endorser thereof, who claimed that the endorsement was a forgery, to corroborate the testimony of defendant a letter purporting to have been written to him by his son admitting the forgery was admitted in evidence. Held, error. .

Appeal from judgment entered on verdict of a jury in favor of the defendant and from order denying motion for new trial.

E. L. Mooney, for app’lts; W. C. Kellogg, for resp’t

This action was brought to recover upon a promissory note made by one George J. Lindner to the order of one George Morell, and endorsed by said Morell and claimed to have been endorsed by the respondent, Jacob Lindner. The sole defense of said Jacob Lindner was that his alleged endorsement of the note was a forgery.

Upon the trial of .this action the plaintiff gave certain evidence tending to prove that the endorsement upon the note in question was made by the defendant, Jacob Lindner.

p. 296

The respondent denied that the endorsement 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. National Benefit Society, 123 N. Y., 85 ; 33 St. Rep., 67 , 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 intent. 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 endorsed 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.

Daniels and Ingraham, JJ., concur.