Randolph v. . Loughlin

48 N.Y. 456

• Court: New York Court of Appeals
• Decided: May 5, 1872
• Status: Published

Opinions

The sole controversy upon the trial of this action was whether the respondent executed the note in suit, or whether his signature to it was a forgery. Upon this question there was very little, if any, competent evidence showing that he executed the note, and the evidence was very strong that he did not.

The Special Term was authorized to review the findings of the jury upon questions of fact under section 256 of the Code, and, upon the appeal to the General Term from the order of the Special Term, the General Term had the same authority. But if the General Term granted a new trial upon questions of fact, no appeal could be taken to the Court of Appeals from the order granting the new trial. This is finally settled by the Court of Appeals in the case of Wright v. Hunter, decided November, 1871 (since reported in 46 N.Y., 409), in which Judge RAPALLO, writing the opinion of the court, has carefully reviewed the various provisions of the Code and the prior decisions upon the subject. Must the General Term, in this case, be presumed to have granted the order setting aside the verdict and for a new trial upon questions of fact? The rule to determine this, as laid down in the case above cited, is this: When the new trial is granted in a case which involves only questions of law, or in which the General Term has no right to review the questions of fact, the Court of Appeals will presume that questions of law were exclusively considered at the General Term, and will consider such questions. But where questions of fact were involved, and the case was such, and was before the General Term in such form that it could review the questions of fact, and hence may have granted a new trial upon questions of fact, an appeal to the Court of Appeals brings up nothing for review, and hence is improper and unauthorized.

This case was properly before the General Term for review upon the facts, and it was a case in which a new trial may have been granted upon the facts. The opinion delivered at General Term shows that one of the reasons, and the principal one, for granting a new trial was, that there was not competent evidence to establish the fact that the respondent executed the note in suit.

Hence we might hold that there was nothing before us for review, and dismiss the appeal; but the point was not discussed or taken in the argument before us, and hence we have concluded to dispose of the case upon the merits.

The suit was upon a single note purporting to have been made by the respondent, the signature to which he claimed to be a forgery. The plaintiff was permitted, against the respondent's objection upon the trial, to put other notes in evidence purporting to be made by him, the signatures to some of which were admitted to be genuine, and to others claimed to be forgeries. I am unable to see how these other notes were competent evidence, and what possible bearing they could have upon the issues upon trial. As they were not competent evidence for any other purpose, they could not be received in evidence to enable the jury to compare the signatures to them with the signature to the note in suit. That such evidence is incompetent is well settled. (Van Wyck v. McIntosh, 14 N.Y., 439;Dubois v. Baker, 30 N.Y. 355.)

The court permitted the counsel for plaintiff to deliver four notes, besides the one in suit, to the jury, and charged them, among other things, as follows: "One of the principal questions for you to consider will be, was the note made by the defendant in person? The defendant, Bishop Loughlin, positively denies this, and the plaintiff has sought to disprove this denial, claiming that the note and signature are in the proper handwriting of the defendant, and that this appears from comparison with the handwriting of other notes and their signatures, proved in the case and acknowledged as genuine, such as notes B and C. You are to make such comparison, and determine whether the resemblance is so perfect and exact as to convince you of the genuineness of the signature, notwithstanding the defendant's positive denial." This charge was clearly erroneous.

The General Term, therefore, committed no error in granting a new trial, and its order must be affirmed, and judgment absolute rendered against the plaintiff, with costs.