McKay v. Lasher

Headnote

Chapter 86 1880 — comparison of a disputed toriting with other genuine writings — how the genuineness of the latter should he proved.

Appeal from a judgment in favor of tlie plaintiffs, entered upon the verdict of a jury at the Hlster Circuit of November, 188L

The court at General Term said: “We have before us only the exceptions to evidence. The first arises under chapter 36, Laws of 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 wilting might be compared with other writings which had been given in evidence for other purposes than comparison. (Miles v. Loomis, 15 N. Y., 288 .) Such writings under the old law might have been proved by the testimony of persons familar 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 {Peoh v. Callaghan, 95 N. Y., IS), unless possibly in a case 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 Cush., 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. Rfewcoml (21 id., 317), or by Mártir, v. Magwire ( 7 Gray, 177 ).->