The Mutual Life Insurance Company of New York, Appellant, v. Matthias Suiter et al., Respondents

The Mutual Life Insurance Company of New York, Appellant, v. Matthias Suiter et al., Respondents. (Argued December 22, 1891; decided January 20, 1892.) Under the provision of the statute authorizing the “ comparison of a disputed writing with any writing proved to the satisfaction of the court to he the genuine handwriting of any person claimed on the trial to have made or executed the disputed instrument” (Chap. 86, Laws of 1886, as amended by chap. 555, Laws of 1888), a party to an action against whom a claim is made therein, founded upon an instrument alleged to have been executed by him, which he disputes, has the right to introduce in evidence other writings, satisfactorily proved to have been executed by him, for the purpose of comparison, and a denial of this right is error requiring a reversal. Appeal from order of the General Term of the Supreme Court in the fourth judicial department, made May 8, 1891, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granted a new trial. This was an action for the foreclosure of a mortgage. Plaintiff claimed that three of the defendants who had liens upon the premises prior to the mortgage, had subordinated their liens to it by accepting and executing a deed to them of the premises in and by which they assumed and agreed to pay the mortgage. They denied the execution or acceptance of the deed, claiming that their signatures thereto were forged. The following is an extract from the opinion: “ Upon the trial of the action, the claim of the plaintiff was that the defendant Mary A. Suiter had written her own signature, and the signatures of her mother and sister Ann, to the deed, and that then her mother and sister had each made her mark. She testified positively that she did not write the signatures; that she did not acknowledge the deed, and that she never heard of the deed until about the commencement of this action, when it was found in the county clerk’s office by her attorney. The widow and the daughter Ann also testified that they did not execute the deed or acknowledge it. The defendants called expert witnesses who testified by comparison of the signatures on the deed with the signature of Mary A. Suiter to the verification of her answer in this action, that the signatures upon the deed were not written by the same person who wrote the name to such verification. The plaintiff called an expert witness who testified that he believed that the three signatures were written by the same person who wrote the name Mary A. Suiter to the affidavit upon the answer to the complaint; and the plaintiff also gave some evidence of statements made by the widow, and also upon her cross^ examination tending to show that the deed was actually exe-. ■cuted and delivered to her. “ While the defendants were putting in their evidence upon the trial, and for the purpose of having a larger number of Mary A. Suiter’s genuine signatures in evidence for comparison with the alleged forged signatures, she produced a signature which she said she had written two years before; and the defendants’ counsel offered to put it in evidence. Plaintiff’s counsel objected to it as incompetent, immaterial and improper, and on the further ground that it was written with a pencil. The trial judge then remarked: £I don’t think the signature of a party written on a loose scrap of paper at some time or another should be put in evidence. I will sustain that objection. It would be a most dangerous rule to adopt. I will sustain the objection on that particular piece of paper.’ The same witness then produced two of her signatures written, one fourteen and the other twelve or thirteen years before the trial, and testified that she had written them at the times mentioned, and defendants’ counsel offered to put them in evidence for the purpose of comparison. Plaintiff’s counsel objected to them on the same grounds, as before, and the trial judge said: ‘ 1 will exclude the evidence and give you an exception. I don’t think this evidence is either admissible or safe.’ It will be observed that these three signatures were not excluded upon the ground that they were not sufficiently proved, or that the judge was not satisfied that they were genuine. We agree with the General Term that these signatures should have been received in evidence for comparison. They would have given to the expert witnesses a wider range for comparison. As it was, the only signatures they had for comparison with the alleged forged signatures, were the signatures of Mary A. Suiter to her affidavit upon the answer, and the signature of Ann Suiter to her affidavit upon her answer in this action which was written by Mary A. Suiter. So that there were in evidence for comparison only ■one signature of the name of Mary A. Suiter with which the experts could compare the alleged forged signature. We think the range of comparison was altogether too narrowly limited, .and that it could not be thus arbitrarily confined. It cannot be said that the exclusion of this evidence was harmless. It was rendered competent by the act, chapter 36 of the Laws of 1880, as amended by the act chapter 555, of the Laws of 1888, .and whatever the views of the trial judge may have been as to its value or safety, he should have received it. “ For the rejection of this evidence the judgment was properly reversed at the General Term and its order should be .affirmed and judgment absolute rendered against the plaintiff, •with costs.” William G. Tracy for appellant. George H. Sears for respondents. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance and judgment absolute against •plaintiff. All concur, Finch J., in result, except Peckham, J., not ¡sitting. Order affirmed and judgment accordingly.