Lincoln National Bank, Appellant, v. Carl Fischer-Hansen, Respondent

Lincoln National Bank, Appellant, v. Carl Fischer-Hansen, Respondent. Continuing guaranty of the payment of notes— terminated by notice of revocation— proof of the advice of an attorney and of a prior declaration of an intention to revolee it is incompetent. If a person, who guarantees the payment of certain notes and of any renewals thereof, prior to the renewal of any of the notes, revokes the guaranty and notifies the bank, to whom the guaranty was given, to insist upon payment of the original notes at maturity, he will not be liable upon renewal notes thereafter accepted by the bank. Where the guarantor interposes this defense in an action brought against him by the bank upon a renewal note, and the bank denies having received notice of the revocation of the guaranty, it is improper to permit an attorney to testify that on the day the original notes fell due the guarantor consulted him in regard to his liability upon the guaranty and that he advised him to go at once-to the bank and revoke his guaranty, for the purpose of corroborating the guarantor’s testimony to the effect that after this interview with his attorney he went to the bank and gave the notice of revocation. Such evidence is not competent under the rule that, when the testimony of a witness is attacked or sought to be impeached upon the ground that it is false and has been induced by a motive disclosed by the evidence, it may be shown to sustain his credibility that he made similar declarations at a time when no motive existed for falsifying. The testimony of a witness that he did a certain thing cannot be corroborated by the testimony of another to whom he had previously declared his intention of doing it'. Appeal by the plaintiff, the Lincoln National Bank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of May, 1903, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 12th day of May, 1903, denying the plaintiff’s motion for a new trial made upon the minutes. Demid Gerber, for the appellant. John JR. Dos JPassos, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: On the 2d day of October, 1901, the defendant signed and delivered to the plaintiff a guaranty in writing of the payment at maturity of any note of notes made by Paul Bertin and his wife, or either of them, to the extent of $5,000 and renewals thereof. On the twenty-second day of May thereafter Bertin and his wife made their promissory note whereby they promised to pay for value received three months after date to the order of themselves $1,000, and before maturity for value indorsed and transferred the same to the plaintiff. The plaintiff in purchasing and discounting the note relied upon the defendant’s guaranty. ' This note was not paid at maturity, although payment was duly demanded, and the note was protested for non-payment. The action is brought to recover of the guarantor the amount of the note together with interest.- The defense interposed was a revocation of the guaranty on the 5th day .of May, 1902, or seventeen days days prior to the making of the note. The question of fact litigated upon the trial was whether or not the guaranty was revoked. There was a sharp conflict in the evidence. The court instructed the jury that if the guaranty was revoked the plaintiff could not recover, but- that otherwise the defendant was liable.' This note was given in renewal of a note upon which the defendant was clearly liable under his guaranty. Of course, if before the renewal the defendant revoked his guaranty and notified the bank to insist on prompt payments of the outstanding notes at maturity, the renewal released the defendant, and the bank must have overlooked the revocation or determined to extend the credit to the makers without other security. The defendant testified that on the 5th day of May, 1902, he called at the bank and “ asked to see somebody in authority; ” that a gentleman whom he now recognizes as Mr. Van Santford was called over, to whom the defendant introduced himself, and said that he had come to revoke his guaranty of the payment of some notes for Mr. and Mrs. Bertin, and said to. Mr. Van Santford that “ Henceforth, I will not be responsible for any new notes, or renewals or extensions ; you must keep him to his payments; ” that thereupon Van Santford excused himself for a moment and went back to . an adjoining room and conferred with another gentleman who was' seated at a roll top desk and then returned and said, “ It will be all right, Mr. Fischer-Hansen,” whereupon the defendant said, “ Is it necessary for me to write ? ” to which Mr. Van Santford replied, “ No, not at all.” The defendant was corroborated by the testimony of his rent collector and office boy whom he asked to have accompany him to the bank. It appears that the defendant is an attorney. The plaintiff gave evidence tending to show that when Mr. Bertin first opened an account at the bank the defendant accompanied him and at this time they both asked for a line of discount of $5,000; that the defendant shortly thereafter and before executing the guaranty upon which this action is based and before the discount was allowed wrote the cashier of the bank, saying that he would be willing to act as surety for Bertin to the extent of $5,000, “the exact details of which I.leave to you to arrange.” Mr. Van Santford, who was the assistant cashier, testified in behalf of the plaintiff. Hé conceded that early in May the defendant called at the bank and inquired of him when the next Bertin note would fall due, but he denied that anything was said concerning the revocation of the guaranty. Mr. Van Santford says that he referred the defendant to the discount clerk. Mr. Baird, the discount clerk, corroborated Van Santford in this regard and says that the defendant inquired of him as to the maturity of the different Bertin notes and said that he did not care to have the bank “ renew them for any larger amount ” and was assured that it would not. •The defendant then called as a witness in his behalf Mr. Kalish of the firm of Lindsay, Kremer, Kalish & Palmer, his attorney, who had been his counsel for sometime. Kalish was permitted to testify, under the plaintiff’s objection and exception, that the evidence was incompetent, that the defendant consulted him with reference to this guaranty, saying that he had learned that Bertin was in failing circumstances and that the witness' advised the defendant to notify the bank at once to insist upon full payment of the note and that he revoked the guaranty. The witness further testified that the defendant informed him that one of the notes was falling due on the day of the consultation and for this reason he advised the defendant to go personally to the.bank at once instead of writing a letter. The defendant then testified that after this interview with his attorney he went to the bank and gave notice of revocation of the guaranty as already stated. This evidence was clearly incompetent. There is no rule of evidence that permits the testimony of a witness that he did a certain thing to be corroborated by the testimony of another to whom he previously declared his intention of doing it. The rule that when the testimony of a witness is attacked or sought to be impeached upon the ground that it is false and has been induced by a motive disclosed by the evidence, it may be shown to sustain his credibility that he made similar declarations at a time when no motive existed for falsifying, declared in Herrick v. Smith (13 Hun, 446); Matter of Hesdra (119 N. Y. 615); Hawley v. Hawley (48 App. Div. 301) and kindred cases has no application. The testimony of the attorney was of no probative force upon the question as to whether the defendant gave notice to the assistant cashier of revocation of the guaranty as to the future. The interview between the defendant and his attorney may have taken place without his subsequently going to the bank at all. Therefore, the testimony of the attorney is no evidence either that the defendant subsequently went to the bank, or as to what he said upon arriving there. It -follows,, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.