Hall v. Van Vranken, 28 Hun, 403.

the question of genuineness in that state is one for the jury. We cannot, for that reason, give much weight to Hyde v. Woolfolk, (1 Iowa, 159).

An examination of the opinion in that case convinces us that it cannot be taken as a well-considered expression of the law. Doubt is therein expressed, whether a writing used for comparison can be proved by the testimony of witnesses, who have only seen the party write, if they have not seen him write that identical paper. And the court, in that case, does not appreciate the reason of the old rule (abolished by the statute under consideration) which forbade the introduction of writings, merely for the purpose of comparison.

The statute allowing comparison of writings is most beneficial. Anyone who has had experience in the trial of questions of disputed handwriting, must have seen the worthlessness of expert testimony. Nothing can be so useful on this class of questions, which are generally perplexing, as to permit an examination with other writings proved to be genuine to the satisfaction of the court. And on this collateral matter we may safely repose a liberal discretion in the trial judge, who sees much from the conduct of the parties that does not appear on appeal papers. Judgment affirmed, with costs.

NOTE.-In Mortimer v. Chambers, 63 Hun, 335, an action was brought under 1843-1850 of the Code of Civil Procedure, against defendants, as devisees under the will of one Louisa F. Fardon, for the purpose of charging upon real estate devised to them certain alleged debts of the testatrix, evidenced by her promissory notes.

Upon the trial the plaintiff sought to compare the signature of the testatrix upon the notes with a signature which appeared upon a bond. This bond with the mortgage collateral to it was produced and the bond put in evidence, and the genuineness of the signature proven by the subscribing witness. Held, that such practice was proper. ANDREWS, J. [on this point]: The bond only appears to have been put in evidence. The witness who produced these papers testified that he was an attorney in this state, and, as the attorney of Mrs. S. E. Morgan, he held a bond and mortgage given by Louisa F. Fardon to the Home Insurance Company, which were the ones produced by him in court; that he had the papers first about two years ago, and that they were still outstanding liens on the real property, described in the complaint in this action, and that the witness had gone to the insurance company with an assignment of the Mr. Coman, also called for the plaintiff, testified that he was an

same.

Hall v. Van Vranken, 28 Hun, 403.

attorney and was the subscribing witness to the bond, and that the name of the subscribing witness there was his own name and in his handwriting; that he saw that paper executed by Mrs. Louisa F. Fardon. He also testified as follows: "I saw her sign it. I know her. I searched the title and had to do with the getting of this bond and mortgage from Mrs. Fardon to the Home Insurance Company. I had charge of it. *** I connect Mrs. Fardon with some Rockland County transaction, in addition to this, but I cannot be more specific. *** I have no doubt that Louisa F. Fardon, who is the mortgagor in this instance, signed that in my presence." It also appeared by the testimony that the plaintiff was the sister, and that the defendant Mary Ann Chambers was the daughter of the testatrix; also, that the plaintiff had at one time lived with the testatrix, and at another time with said daughter; and that the testatrix, with her husband, had at one time lived upon the premises described in the complaint. We think that the evidence was sufficient to prove that Louisa F. Fardon, the testatrix, was the same Louisa F. Fardon who signed the bond, and that the signature to the bond was the signature of the testatrix; and this established a sufficient basis for a comparison of the signature upon the bond with the signature upon the notes. Mr. Ames, an expert in handwriting, was called as a witness for the plaintiff, and testified, in substance, that the signature of Louisa F. Fardon upon the notes was written by the same person who wrote the signature Louisa F. Fardon upon the bond. No contradictory evidence was offered by defendant's counsel, although the defendant, Mary Ann Chambers, was called as a witness, and, as she appears by her evidence to have been an intelligent person, it may be fairly presumed that she was familiar with her own mother's signature; and it is, therefore, somewhat significant that no attempt was made to prove by her that the signatures upon the notes were not the genuine signatures of her mother. Moreover, another significant fact is that when the plaintiff, the sister of the testatrix, was on the stand, she was asked this question: "In whose handwriting is the signature and in whose handwriting is the body of each of these three promissory notes which have been shown you?" This question was objected to by the defendant's counsel, and the objection was sustained. We think that the making of the notes was sustained by the evidence.

It is also insisted by the counsel for the defendants that there was no evidence that the notes in question, or any of them, were or was ever delivered to the plaintiff, or that the testatrix ever negotiated or knowingly parted with the said notes.

The plaintiff, against the objection of defendant's counsel, testified upon the trial that the notes in suit had been in her possession prior to the month of December, 1880, when Mrs. Fardon died, and were in her possession at the time of such death.

It is claimed that this was testimony in relation to a personal transaction with the deceased, and that under Section 829 of the Code it was not competent. We do not think this objection is well taken. In Simmons 2. Havens (101 N. Y., 433) it was said: "Exception was also taken to the

Mutual Life Ins. Co. of N. Y. v. Suiter, 131 N. Y., 557.

plaintiff being allowed to testify that she had the deed in her possession, and that the signature was in the handwriting of her mother; she was not asked, and did not state, from whom she received the deed; and her testimony as to the handwriting or the contents of the deed did not involve a personal transaction between her and her mother.' The plaintiff might have received the deed from some third person." Counsel for the defendants, in his brief, points out some particulars wherein the case of Simmons . Havens differs from the case at bar. But the portion of the opinion above quoted is clear and explicit, and whatever differences be tween the cases may exist, we think that the decision in that case applies to and controls the case at bar (see also Taber v. Willetts, 44 Hun, 346; Greer v. Greer, 20 N. Y. Civ. Pro. Rep., 75; Wing v. Bliss, 8 N. Y. Supp., 500).

MUTUAL LIFE INSURANCE COMPANY v. SUITER.

New York Court of Appeals, 1892.

[Reported in 131 N. Y., 557.]

A party who claims that the signature in question in the action is not hers, has a right under the acts of 1880 c. 36, and 1888, c. 555 to give in evidence specimens sworn by her to be her own signature and made before the controversy arose, in order to use them as standards of comparison.

In an action to foreclose a mortgage, plaintiff relied on an assumption clause in a conveyance to the defendants which purported to be executed and acknowledged by the defendants as parties of the second part.

Upon the trial it was claimed by defendants that the alleged signatures of the grantees to the deed as well as that of the notary public to the acknowledgment were forgeries.

Plaintiff claimed that the defendant Mary A. Suiter had written her own signature and the signature of her mother and sister, (the other grantecs) to the deed, and that then each of the latter had made her mark.

The defendant Mary A. Suiter was called as a witness in her own behalf and was asked the following question by her counsel as to her signature written on a scrap of paper, marked, "Exhibit D":

Mutual Life Ins. Co. of N. Y. v. Suiter, 131 N. Y., 557.

"Q. Did you write these words Mary A. Suiter, Manlius, N. Y., on there? A. Yes, sir.

Q. Is that your handwriting? A. Yes, sir.

Q. You may state to the court when you wrote it? A. About

two years ago.

Defendant's Counsel: I offer it in evidence. Of course we had to gather this up the best way we could.

Plaintiff's Counsel: I object to it as incompetent, immaterial and improper. It is in pencil.

The Court: I don't think the signature of a party written on a loose scrap of paper at some time or another should be put in evidence. I will sustain the objection. It would be a most dangerous rule to adopt. I will sustain the objection on that particular piece of paper. Defendant excepted.

Further examined by her counsel:

Q. I show you exhibit E. Is that in your handwriting? A. Yes, sir.

Q. How long ago did you write that? A. That is about fourteen years ago.

Q. Is exhibit F. in your handwriting? A. Yes, sir.

Q. What was the occasion of you writing that? A. It was a song and I wrote my name on it.

Q. How long ago? A. About twelve or thirteen years ago. Q. Is the body of it in your writing? A. Yes, sir. It is all in my writing.

Q. This exhibit E., how came you to write that? A. That is the

song.

Q. Where has it been ever since? A. I have had it lying on the melodion.

Q. At home? A. Yes, sir; just came across it the other day.

Defendants Counsel: I think those specimens, Exhibits E. and F., should be put in evidence.

Plaintiff's Counsel: When was that written: did she say? Defendant's Counsel: Q. When was the last one written? A. About twelve or thirteen years ago.

Plaintiff's Counsel: I object to that as incompetent, immaterial and improper.

Mutual Life Ins. Co. of N. Y. v. Suiter, 131 N. Y., 557.

By Defendants Counsel: Q. Are these the only specimens of your handwriting at home you could find to bring here? A. I have got some more in books, I didn't care about bringing in court; I didn't think they would be of any use.

Defendant's Counsel offered Exhibits E. and F. in evidence for the purpose of comparison only.

Objected to as incompetent, immaterial and improper. Evidence excluded. Exception taken."

The Supreme Court at Special Term directed judgment for plaintiff.

The Supreme Court at General Term reversed the judgment. The Court of Appeals affirmed the judgment of the General Term.

EARL, J., [after stating facts]: It will be observed that these three signatures were not excluded upon the ground that they were not sufficiently proved, or that the judge was not satisfied that they were genuine. We agree with the General Term that these signatures should have been received in evidence for comparison.

They would have given to the expert witnesses a wider range for comparison. As it was, the only signatures they had for comparison with the alleged forged signatures were the signatures of Mary A. Suiter to her affidavit upon the answer and the signature of Ann Suiter to her affidavit upon her answer in this action, which was written by Mary A. Suiter. So that there was in evidence for comparison only one signature of the name of Mary A. Suiter, with which the experts could compare the alleged forged signature. We think the range of comparison was altogether too narrowly limited, and that it could not be thus arbitrarily confined. It cannot be said that the exclusion. of this evidence was harmless. It was rendered competent by the act, chapter 36 of the Laws of 1880, as amended by the act, chapter 555 of the Laws of 1888, and whatever the views of the trial judge may have been as to its value or safety, he should have received it.

For this rejection of this evidence the judgment was properly