Hoag v. Wright

• Decision Date: 24 February 1903
• Parties: HOAG v. WRIGHT et al.
• Court: New York Court of Appeals Court of Appeals

174 N.Y. 36

66 N.E. 579

HOAG

v.WRIGHT et al.

Court of Appeals of New York.

Feb. 24, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James H. Hoag against Edward Wright and others, executors of Hester Hoag, deceased. From a judgment of the Appellate Division (74 N. Y. Supp. 1069) affirming a judgment for plaintiff, defendants appeal. Reversed.

James M. Hunt, for appellants.

Isaac N. Mills and Joseph Hover, for respondent.

PER CURIAM.

The plaintiff is the son and sole surviving descendant of the defendants' testatrix, Hester Hoag, who died on the 15th of February, 1895, in the eighty-first year of her age. The action is upon two promissory notes-one for $2,000, dated October 16, 1890, payable to the order of the plaintiff; and the other for $4,000, dated November 13, 1894, payable to the plaintiff-without words of negotiability. The complaint is in the usual form, and by their answer the defendants denied the making and delivery of both notes, and alleged that, if made or delivered, they were without consideration. The contest upon these issues was long and sharp, as both parties produced much persuasive evidence in support of their respective theories. As the affirmance was unanimous, and there was no exception to the charge of the court, our review must be confined to an examination of the rulings relating to evidence.

The plaintiff was the first witness called at the trial, and before the notes were read in evidence they were shown to him, and he was asked whether they were in his possession prior to the death of his mother. He answered that they were. The question was objected to in due time as incompetent, no other objection having been interposed, and to the ruling which admitted the evidence an exception was taken.

The witness, being interested, was incompetent to testify to a personal transaction with his deceased mother, according to the express command of section 829 of the Code of Civil Procedure. When proof of the possession of a promissory note and of the genuineness of the signature thereto are exclusively relied upon to establish delivery, the presumption is that the evidence as to possession involves a personal transaction. Richardson v. Emmett, 170 N. Y. 412, 417,63 N. E. 440;Clift v. Moses, 112 N. Y. 426, 20 N. E. 392. When, however, delivery is proved by independent testimony, showing delivery to a third person for the interested witness when he was not present, proof of possession does not imply a personal transaction. At the time the ruling in question was made, no evidence as to delivery had been given, and the plaintiff was, therefore, as the case then stood, incompetent to answer the question under consideration.

The objection interposed, however, did not challenge the competency of the witness, but the competency of the evidence; whereas the evidence was competent, but the witness was not. While an objection to the competency of a witness need not refer specifically to the section of the Code which renders him incompetent, it is necessary to raise the question in some way which makes the intention clear. An objection that the witness is incompetent or interested would, perhaps, be sufficient, but the simple objection that the evidence is incompetent is not specific enough to justify a reversal. Sanford v. Ellithorp, 95 N. Y. 48, 52;Ham v. Van Orden, 84 N. Y. 257, 271;Stevens v. Brennan, 79 N. Y. 254, 259. In all the cases to which our attention has been called where the reversal was founded upon section 829, the objections were so full and clear as necessarily to bring before the minds of the court and the opposing counsel the distinct ground relied upon. Fair practice requires this, so that the court may rule intelligently, and counsel may be advised of the risk they are taking, and act accordingly. Sterrett v. Third National Bank of Buffalo, 122 N. Y. 659, 662,25 N. E. 913.

While the notes were read in evidence upon the testimony given by the plaintiff only, at a later stage in the case his wife testified that the testatrix, about two weeks before her death, put the notes in an envelope, and told her to give them to the plaintiff, which she did promptly, when his mother was not present. The plaintiff also testified that his wife handed him the notes and envolope, and that he put them into his desk, where they remained until after his mother's death. If the objection had been more specific, the wife might have been called at once, and delivery proved by her. Under these circumstances we are of the opinion that the ruling does not present reversible error.

After the plaintiff had testified, without objection, that he was familiar with his mother's signature, he was asked to examine the notes, and state whether or not the signature to each was in his mother's handwriting. An objection was interposed, which sufficiently challenged his competency as a witness, but it was overruled, and he answered that he thought the signatures were in his mother's handwriting. The question called for an opinion, not a personal transaction, and the evidence to qualify the witness to express his opinion was not objected to. We think the ruling is sustained by the authorities. Wing v. Bliss (Sup.) 8 N. Y. Supp. 500, affirmed on opinion below, 138 N. Y. 643, 34 N. E. 513;Simmons v. Havens, 101 N. Y. 427, 5 N. E. 73. The case of Boyd v. Boyd, 164 N. Y. 234, 58 N. E. 118, is not in conflict with the authorities cited, for the court united only upon the third proposition discussed in the opinion, which involved no question under section 829. Moreover, upon reading pages 245 and 246, 164 N. Y., page 122, 58 N. E., it will appear that the learned judge who wrote in that case was inclined to regard the opinion of an interested witness as to the genuineness of the signature of his decedent as competent, when not so wrapped up in a personal transaction, during which he saw the decedent sign the paper, as to make it impossible for him to separate what he swore to ‘from personal knowledge and observation (which was stricken out) from what he subsequently asserts in the same direction as matter of opinion.’

Experts were called by both parties to give their opinions as to the genuineness of the signatures to the notes after comparing them with the indorsement of the decedent upon certain checks read in evidence as standards of comparison. Upon the cross-examination of an expert named Reed, called by the plaintiff, it appeared that during his testimony upon a previous trial of this action he had been shown two papers so folded as to disclose only what purported to be the signature of the decedent upon each. He testified, in substance, that upon the other trial, after comparing these signatures with the standards in evidence, he had pronounced them genuine, and had sworn that all were written by the same hand. Each of the papers, when unfolded, was a total blank, and the signatures were obviously spurious. The witness was thus compelled to admit that he had been mistaken in his opinion as an expert, upon the previous trial, in relation to the signature of the decedent, and had testified that the spurious signatures were genuine.

After this witness had left the stand, another expert was called by the plaintiff, who, also testifying by comparison, stated that the signatures to the notes were genuine. Upon cross-examination an effort was made by the defendants' counsel to show that he had made the same mistake upon the previous trial as Mr. Reed. For this purpose he was shown the two papers, folded so as to expose only the spurious signatures, and was asked if he remembered that these signatures had been shown him on the former trial. The counsel for the plaintiff objected to ‘showing the witness any papers which are not in evidence.’ The court thereupon said: ‘The objection is sustained. I think it is incompetent. On reflection,I will strike it out. I will strike out the testimony of the other witness-the testimony in regard to these two papers which has been given by Mr. Reed. (To the jury): I will strike it out, and you will pay no attention to it.’ The defendants' counsel duly excepted, and thereupon asked: ‘Do you not remember that you testified before Judge Jenks, when the papers that I now show you were presented, that in your opinion the same hand wrote the words ‘Hester Hoag’ before the seals on those papers that wrote the words ‘Hester Hoag’ upon the indorsement upon the checks?' This was objected to as incompetent and immaterial, ‘and especially that these papers are not in evidence.’ The objection was sustained, and the defendants, after duly excepting, offered the papers in evidence ‘to obviate that objection.’ This was objected to ‘on the ground that they have not been proven so as to be admitted as standards of comparison, and the papers themselves are wholly immaterial.’ The objection was sustained. and the defendants excepted. Afterward the same rulings in substance were made when the third expert of the plaintiff was upon the stand, and similar exceptions were taken.

The opinions of experts upon handwriting, who testify from comparison only, are regarded by the courts as of uncertain value, because in so many cases where such evidence is received witnesses of equal honesty, intelligence, and experience reach conclusions not only diametrically opposite, but always in favor of the party who called them. The right to cross-examine such witnesses is of great importance, and, while it should be confined within reasonable limits, it should not be so restricted as to deprive it of all value. The trial judge has a wide discretion in controlling the...