By the court, Barnard, J.
The question of the alteration of the note was one of pure fact for the jury. The learned justice who tried this action could not have withdrawn the question from their consideration. The notice of protest was sufficient. It described the note by giving its amount, [251]*251date, and the time it was to run, and that it was protested for non-payment. The inference is, that it was demanded and protested on the day it became due (Young agt. Lee, 2 Kern. 551). The only remaining question is as to the discharge of the defendant Backus, by reason of the bank having extended the time of payment to Gilmore, the maker of the note. Gilmore testifies to a verbal agreement with the president of the bank, that the bank was to advance him $10,000, and take mortgages on certain real property for this advance and the old indebtedness, which included this note in suit, and extend the time for the payment of the old debt for one year; that this agreement was reduced to writing by the attorney of the bank, but was never signed by either party; that the mortgages were given in pursuance of this agreement by Gilmore to the bank; that the bank never advanced the money. One of the mortgages given was subsequently canceled by the bank, which cancelation, with the mortgage, was accepted by Gilmore without in any way being paid. This mortgage was introduced in evidence, and shows no extension of time of payment to Gilmore, but is payable on the instant of its execution. The parol agreement, if one was made, was merged in this mortgage, and that only expresses the true agreement between the parties (Burbank, President agt. Beach, 15 Barb. 326). There is, therefore, no sufficient proof that the time of the payment of the note was ever extended by the bank to Gilmore. It was not a discharge of Backus to take this mortgage to secure the note in question, and to re-deliver it to Gilmore without Backus’ assent and without payment, if the time of payment was not extended (Pitts agt. Congdon, 2 Comst. 352).
Judgment affirmed, with costs.
Leonard, J.
The case shows no request to charge on the subject of the alteration of the date of the note, and no motion for a nonsuit on that ground at the close of the evidence, and nothing in the charge as contained in the case referring to it; the inference may be fairly drawn, either that the question was properly submitted to the jury, or [252]*252wholly waived by the defense after the evidence was all before the court.
The counsel for the defense waived all argument at the hearing of the appeal, in respect to the motion for a nonsuit at the close of the plaintiff’s evidence, but it has been considered by a member of the court as a material ground for granting a new trial, on the motion of the court only, and I shall therefore refer to it more at large: The subject is on the defendants’ points, but counsel expressly stated that he should not argue it. The question raised by the motion was whether the burden of proof rested upon the plaintiff to explain an alteration of the date of the note.
The alteration was without any attempt at concealment or disguise, which usually attends a fraud; the figure 7 being plainly written over an 8, and affecting the period of maturity only one day, seemed rather an unimportant subject of fraud, under the circumstances of the parties, the bank officers being merely trustees. The presumption of law is in favor of innocence. It is stated in Greenleaf on Evidence (§ 564), that “ generally speaking, if nothing appears to the contrary, the alteration will be presumed to be contemporaneous with the execution of the instrument.” An exception to the rule of the presumption of innocence seems to be admitted by the English authorities in the case of commercial paper, the holder being required to explain every apparent and material alteration operating in his own favor.
The contrary rule has been held in some- cases in the United States, Davis agt. Jenney (1 Met. 221), holding that the burden of proof was on the defendant. In Cowen & Hill’s Notes (2 vol. p. 299, note 298), it is said to be quite doubtful how far these decisions will be followed by the American courts. The direct contrary has been holden in New Jersey (Cumberlank Bank agt. Hall, 1 Halst. 215).
In Rankin agt. Blackwell (2 Johnson’s Cases, 200), it is said by the court that “ alterations on the face of a note, unsupported by other proof, would not be competent evidence, it having been insisted by the defense that the jury might [253]*253decide from such evidence whether the note had been altered or not.”
In Tillou agt. The Clinton & Essex Mutual Insurance Co. (7 Barb. 568), Judge Babculo says, it has long been a disputed point whether the burden of explaining an alteration apparent upon a paper devolved upon the party seeking to enforce it, or the party sought to be charged. But when the alteration is suspicious, and beneficial to the holder, the more sensible rule prevails, at least in this state and in England, that the presumption is against the party who sets up the paper. (Vide also Bailey agt. Taylor, 11 Conn. R. 531.)
In my opinion the ruling was correct under the circumstances of this case, but if not correct, the defendant did not rely upon his objection, but proceeded to give evidence on the subject, which was followed by other evidence on the part of the plaintiff, so that the fact became material to be submitted to the jury, and could not be determined as a question of law. A new trial will not be granted, on the ground that a nonsuit was refused when the plaintiff rested on insufficient evidence, if the necessary proof is afterwards supplied. (Schenectady & Saratoga Plankroad agt. Thatcher, 11 N. Y. R. 102 and 112; Lansing agt. Van Alstyne, 2 Wend. R. 561; Breidert agt. Vincent, 1 E. D. Smith, 542, 544.) The facts subsequently appearing were that the note was drawn by Gilmore, the maker, and indorsed by the defendant Backus, who delivered it to Mr. Platt, the president of the bank, to take up another note for the same amount, made and indorsed by the same parties, and held by the bank, which fell due on the 7th day of November, 1857, upon which day the note in suit, as altered, also bears date. Backus, the indorser, did not notice the date at all at the time he delivered it to Mr. Platt, who died sometime before the trial. Gilmore testified that the alteration was not made by him, and he did not know who made it. The 8th of November, 1857, fell on Sunday. The note was antedated and delivered to the president some days after the time it bears date. Mr. Platt delivered it seventy-six days before maturity to the discount clerk of the bank, who testifies that [254]*254the alteration was then upon the note. Three witnesses, who are well acquainted with the handwriting of Mr. Platt, testify that the figure is not in his handwriting, and two of them, being acquainted with the handwriting of Gilmore, the maker, testify that the figure is in his writing. There were some circumstances in the evidence of Gilmore, tending to impair his credit as a witness. The body and date of the note, as at first drawn, were in the writing of Gilmore, and he intended to have it bear date the same day that the former note fell due.
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By the court, Barnard, J.
The question of the alteration of the note was one of pure fact for the jury. The learned justice who tried this action could not have withdrawn the question from their consideration. The notice of protest was sufficient. It described the note by giving its amount, [251]*251date, and the time it was to run, and that it was protested for non-payment. The inference is, that it was demanded and protested on the day it became due (Young agt. Lee, 2 Kern. 551). The only remaining question is as to the discharge of the defendant Backus, by reason of the bank having extended the time of payment to Gilmore, the maker of the note. Gilmore testifies to a verbal agreement with the president of the bank, that the bank was to advance him $10,000, and take mortgages on certain real property for this advance and the old indebtedness, which included this note in suit, and extend the time for the payment of the old debt for one year; that this agreement was reduced to writing by the attorney of the bank, but was never signed by either party; that the mortgages were given in pursuance of this agreement by Gilmore to the bank; that the bank never advanced the money. One of the mortgages given was subsequently canceled by the bank, which cancelation, with the mortgage, was accepted by Gilmore without in any way being paid. This mortgage was introduced in evidence, and shows no extension of time of payment to Gilmore, but is payable on the instant of its execution. The parol agreement, if one was made, was merged in this mortgage, and that only expresses the true agreement between the parties (Burbank, President agt. Beach, 15 Barb. 326). There is, therefore, no sufficient proof that the time of the payment of the note was ever extended by the bank to Gilmore. It was not a discharge of Backus to take this mortgage to secure the note in question, and to re-deliver it to Gilmore without Backus’ assent and without payment, if the time of payment was not extended (Pitts agt. Congdon, 2 Comst. 352).
Judgment affirmed, with costs.
Leonard, J.
The case shows no request to charge on the subject of the alteration of the date of the note, and no motion for a nonsuit on that ground at the close of the evidence, and nothing in the charge as contained in the case referring to it; the inference may be fairly drawn, either that the question was properly submitted to the jury, or [252]*252wholly waived by the defense after the evidence was all before the court.
The counsel for the defense waived all argument at the hearing of the appeal, in respect to the motion for a nonsuit at the close of the plaintiff’s evidence, but it has been considered by a member of the court as a material ground for granting a new trial, on the motion of the court only, and I shall therefore refer to it more at large: The subject is on the defendants’ points, but counsel expressly stated that he should not argue it. The question raised by the motion was whether the burden of proof rested upon the plaintiff to explain an alteration of the date of the note.
The alteration was without any attempt at concealment or disguise, which usually attends a fraud; the figure 7 being plainly written over an 8, and affecting the period of maturity only one day, seemed rather an unimportant subject of fraud, under the circumstances of the parties, the bank officers being merely trustees. The presumption of law is in favor of innocence. It is stated in Greenleaf on Evidence (§ 564), that “ generally speaking, if nothing appears to the contrary, the alteration will be presumed to be contemporaneous with the execution of the instrument.” An exception to the rule of the presumption of innocence seems to be admitted by the English authorities in the case of commercial paper, the holder being required to explain every apparent and material alteration operating in his own favor.
The contrary rule has been held in some- cases in the United States, Davis agt. Jenney (1 Met. 221), holding that the burden of proof was on the defendant. In Cowen & Hill’s Notes (2 vol. p. 299, note 298), it is said to be quite doubtful how far these decisions will be followed by the American courts. The direct contrary has been holden in New Jersey (Cumberlank Bank agt. Hall, 1 Halst. 215).
In Rankin agt. Blackwell (2 Johnson’s Cases, 200), it is said by the court that “ alterations on the face of a note, unsupported by other proof, would not be competent evidence, it having been insisted by the defense that the jury might [253]*253decide from such evidence whether the note had been altered or not.”
In Tillou agt. The Clinton & Essex Mutual Insurance Co. (7 Barb. 568), Judge Babculo says, it has long been a disputed point whether the burden of explaining an alteration apparent upon a paper devolved upon the party seeking to enforce it, or the party sought to be charged. But when the alteration is suspicious, and beneficial to the holder, the more sensible rule prevails, at least in this state and in England, that the presumption is against the party who sets up the paper. (Vide also Bailey agt. Taylor, 11 Conn. R. 531.)
In my opinion the ruling was correct under the circumstances of this case, but if not correct, the defendant did not rely upon his objection, but proceeded to give evidence on the subject, which was followed by other evidence on the part of the plaintiff, so that the fact became material to be submitted to the jury, and could not be determined as a question of law. A new trial will not be granted, on the ground that a nonsuit was refused when the plaintiff rested on insufficient evidence, if the necessary proof is afterwards supplied. (Schenectady & Saratoga Plankroad agt. Thatcher, 11 N. Y. R. 102 and 112; Lansing agt. Van Alstyne, 2 Wend. R. 561; Breidert agt. Vincent, 1 E. D. Smith, 542, 544.) The facts subsequently appearing were that the note was drawn by Gilmore, the maker, and indorsed by the defendant Backus, who delivered it to Mr. Platt, the president of the bank, to take up another note for the same amount, made and indorsed by the same parties, and held by the bank, which fell due on the 7th day of November, 1857, upon which day the note in suit, as altered, also bears date. Backus, the indorser, did not notice the date at all at the time he delivered it to Mr. Platt, who died sometime before the trial. Gilmore testified that the alteration was not made by him, and he did not know who made it. The 8th of November, 1857, fell on Sunday. The note was antedated and delivered to the president some days after the time it bears date. Mr. Platt delivered it seventy-six days before maturity to the discount clerk of the bank, who testifies that [254]*254the alteration was then upon the note. Three witnesses, who are well acquainted with the handwriting of Mr. Platt, testify that the figure is not in his handwriting, and two of them, being acquainted with the handwriting of Gilmore, the maker, testify that the figure is in his writing. There were some circumstances in the evidence of Gilmore, tending to impair his credit as a witness. The body and date of the note, as at first drawn, were in the writing of Gilmore, and he intended to have it bear date the same day that the former note fell due.
Under this evidence, it was clearly a question for the jury to determine by whom the alteration was made,' and whether before or after the indorsement by the defendant. The maker never had the possession of the note after he signed and delivered it to the indorser. In my opinion the evidence sustains the verdict, and that the alteration was contemporaneous with the making and indorsement.
The sole remaining question upon which the members of this general term have any difference of opinion, relates to the sufficiency of the notice of protest.
The only possible defect which can be attributed to this notice is the omission to.date it. New York is stated in such relation as to appear to be the place where it emanated, but the day, month and year are omitted. The rule is laid down by Judge Weight as to the facts necessary to appear in a notice of protest in the case of Hodges agt. Shuler (20 N. Y. R. 114,118). He says, in that case, “ a notice which omits an essential feature of the note, or misdescribes it, is an imperfect one, but is not necessarily invalid. It is invalid only when it fails to give that information, which it would have given but for its particular imperfection; and even in case the notice in itself be defective, if, from evidence aliunde of the attendant circumstances, it is apparent that the indorser was not deceived or misled as to the identity of the dishonored note, he will be charged. A note is well described when its maker, payee, date, amount and time and place of payment are stated. In that case the note was made by a railroad company, but was described in the notice as made [255]*255by“S. Henshaw, treasurer,” and it was held sufficient, although conceded to be a misdescription of the maker, on the ground that it appeared that the indorser was not deceived or misled thereby. In the present case all these particulars are fully complied with.
The notice states that the note is dated “ November 7, 1857.” The jury found that to be the true date, and that there had not been any fraudulent alteration. The notary proves the time and manner of service, and the defendant does not deny that he received the notice in due time, assuming the true date of the note to be the 7th and not the 8th of November, 1857. The name of the maker, the fact that the defendant is the indorser, the amount, the date, the place of payment, and the time (90 days) are all exactly furnished in the notice.
The time of service was correct, and the defendant received the notice. I am unable to perceive that anything was omitted to apprise the defendant of every requisite in respect to the demand and neglect or refusal of payment by the maker, so as to charge him as an indorser. Had the jury found that there had been an alteration in the date of the note after its indorsement by the defendant, there would have been a failure to serve the notice on the proper day. But this defense of a defective notice would have been unimportant had the jury found for the defendant on the question of alteration, as the note would have been void on that ground.
We must now assume that the true date of the note was that mentioned in the notice. The service was then regular as to time, and the notice contained every essential statement necessary to apprise the defendant that the note which he had indorsed for Gilmore had been protested.
The omission to date the notice cannot mislead where it is served on the proper day. The notice is given at the proper time. There is no evidence that the defendant had indorsed any other note of a like description. We cannot infer that there were others similar to it (Young agt. Lee, 2 Kern. 551.)
The judgment should be affirmed, with costs.