Palmer v. Manning

4 Denio 131

Opinion

By the Court, Jewett, J.

The execution of the note by the defendant, upon which the plaintiff recovered, was not proved.

It is claimed to have been proved by the defendant's admission made to the witness Paul. Conceding that this admission sufficiently establishéd that there was a genuine note in existence, executed by the defendant, payable to hearer, for $>20, belonging to the plaintiff, non constat, but that the note produced on the trial was spurious; and if so, a recovery on it would not avail the defendant in a suit on the true note. The identity of the note to which the confession of the defendant related is not proved; the evidence does not tend to show that the defendant admitted that he executed the note produced on the trial. Evidence that the defendant had executed a note answéring the description of the note produced, without other proof of identity, is not sufficient to submit to a jury to pass upon the question whether the defendant executed the note ■produced. (Shaver v. Ehle, 16 John. 201.) The point was expressly raised on the motion for a nonsuit, that there was no sufficient evidence of the making of the note;

Judgment affirmed.