Felt v. Olson

74 A.D.2d 722, 425 N.Y.S.2d 686, 1980 N.Y. App. Div. LEXIS 10413

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1980
• Status: Published

Opinions

Judgment affirmed, with costs. Memorandum: This action, tried before the court without a jury, presented fact questions which were resolved in favor of defendant. We find no reason to disturb this determination. The dissenters place great reliance upon the testimony of a handwriting expert who rendered his opinion as to the authenticity of the signature of Conrad W. Olson on certain documents in issue. CPLR 4536 provides for the admissibility of certain proof of a disputed writing, not the probative value of the proof. The qualification of a witness to testify as an expert is to be ascertained by the court. The extent of an expert’s qualification is a fact to be considered by the trier of the fact when weighing the expert testimony (Meiselman v Crown Hgts. Hosp., 285 NY 389; Matter of Commissioner of Welfare of City of N. Y. v Simon, 20 AD2d 865; Fisch, New York Evidence [2d ed], § 428). The opinion of an expert may be accepted or rejected by the jury (Richardson, Evidence [10th ed], § 367). "Even though no testimony was offered by the plaintiff to contradict the testimony of these experts, it was still within the province of the jury to reject their testimony altogether. The weight to be given to opinion evidence ordinarily is entirely for the determination of the jury” (Commercial Cas. Ins. Co. v Roman, 269 NY 451, 456-457). The authenticity of Conrad Olson’s signature was placed in issue by the answer of defendant denying the existence of the notes or indebtedness. The subscribing witness to the notes, called by plaintiff, testified to seeing Scott Olson sign the notes but stated that she did not see Conrad Olson sign them, nor did she see his signature on them. Olson’s widow also testified and plaintiff had an opportunity to ask her if the signatures on the notes belonged to her husband. This was not done so there still remains the denial raised in the answer. "In a case of this kind, where death has sealed the lips of a defendant, the evidence against him must be clear and convincing, and it is for the triers of the facts to determine, subject to the power of the court to set aside their verdict, whether it is, or is not. In so doing, they may reject evidence as to personal transactions, even though uncontradicted, which might be sufficient to satisfy them, if the defendant were living” (Frieder v Fuchs, 2 AD2d 772, 773). Even were we to conclude that the trial court erred in not accepting the handwriting expert’s testimony as to the genuiness of Olson’s signature on the two notes, we believe plaintiff still may not succeed. In order for her to succeed on her cause of action based upon these two notes it was necessary for plaintiff to prove that there was consideration for the notes. We find insufficient proof of consideration in the record to support a verdict for plaintiff as did the trial court. There is no evidence that Olson ever actually received the $10,000 proceeds of the two notes. On the contrary, Olson’s widow testified that she wa's familiar with her husband’s business affairs and that he never received such funds or deposited them in their joint bank account. The proof also showed that Olson had borrowed money on a previous occasion from Felt who was his landlord and Mrs. Olson testified that she was fully aware of that debt. The record reveals that this debt was repaid. The testimony also demonstrates that Felt was in the process of obtaining a divorce from his third wife and drew two separate $5,000 checks from his joint bank account which he held with his daughter concerning which account she testified that she knew very little. Further, plaintiff’s daughter, as payee, has to prove that either she or her father took the notes for value. Even conceding the genuineness of Olson’s signature and a resulting presumption of consideration for the notes, in our view this presumption was rebutted by defendant’s proof. Thus plaintiff failed to sustain her burden sufficient to entitle her to payment on these two notes (42 NY Jur, Negotiable Instruments, § 462). When the findings and determinations of the trial court are not against the weight of the credible evidence they should not be disturbed (Shipman v Words of Power Missionary Enterprises, 54 AD2d 1052). All concur, except Hancock, Jr., and Witmer, JJ., who dissent and vote to reverse and grant judgment for plaintiff, in accordance with the following memorandum.