Giberton v. Ginochio

1 Hilt. 218

• Court: New York Court of Common Pleas
• Decided: July 15, 1856
• Status: Published

Opinion

INGRAHAM, First Judge. —

The justice did not err in'admitting proof of tbe confession of the defendant to tbe making of tbe note in controversy. Although tbe rule as to sealed instruments requires tbe production of tbe subscribing witness, yelyas to instruments not under seal, tbe strictness of that rule has been so far relaxed, in this state, as to permit the instrument to be proven by tbe confession of tbe party signing it. Hall v. Phelps, 2 John. R. 451 ; Shaver v. Ehle, 16 id. 201 ; Manri v. Heffernan, 13 id. 75 ; Henry v. Bishop, 2 Wend. 575.

Tbe evidence in this case was tbe direct admission, of tbe defendant, that be bad signed tbe instrument in suit, and delivered it to Saracco.

Tbe contradiction between tbe two witnesses, as to tbe signature, was not fatal to plaintiff’s case. Tbe first witness only stated bis.opinion. It left a question for tbe justice to decide, with which we do not interfere.

There was no error in refusing tbe adjournment. There bad been one adjournment in pursuance of the stipulation, and we have held that tbe justice has no power to adjourn after com-u mencing a trial, without tbe consent of both parties, if be has time to conclude the case without it.

Judgment affirmed.