Messmore v. Black

Headnote

This is an appeal from an order entered in this action December 29, 1874, vacating an order of discontinuance and substituting one Daniel Messmore as plaintiff in the action.

The suit was brought to recover certain life insurance moneys which had been drawn by the defendant herein, and to which the plaintiff claimed to be entitled.

Upon the trial defendant by way of offset introduced in evidence what purported to be a bond signed by plaintiff, for $750, as security for rent of a certain house belonging to defendant, and which plaintiff and her husband occupied. While upon the witness stand plaintiff swore that she never executed such a bond, and that what purported to be her signature was a forgery. The judge thereupon decided that “ in consequence of the forgery committed by plaintiff’s husband, the house-rent cannot be offset.” Under this ruling the plaintiff became entitled to judgment for between twelve and fourteen hundred dollars.

After the trial the plaintiff concluded that she might have signed the bond referred to, and she consented to take $400 in full satisfaction of her claim.

Daniel Messmore then made this application to have the action continued in his name as plaintiff, alleging that he was the owner of the claim against Black, by virtue of an assignment from the plaintiff. The General Term, in view of the conflicting statements contained in the affidavits, modified the order of the Special Term by directing a reference to take proof of the facts alleged in the affidavits, and such other evidence as might be offered, and directed the report of the referee to be made to the Special Term, ten dollars costs and disbursements of appeal to abide event; the present order to stand until further order be made on th.e coming in of the report.