Farmers' Loan and Trust Co. v. Siefke

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: ANDREWS
• Citation: Farmers' Loan & Trust Co. v. Siefke, 144 N.Y. 354, 39 N.E. 358 (N.Y. 1895)
• Decision Date: 15 January 1895
• Parties: THE FARMERS' LOAN AND TRUST COMPANY, as Committee, etc., Appellant, v. HENRY SIEFKE, Respondent.

144 N.Y. 354

39 N.E. 358

FARMERS' LOAN & TRUST CO.

v.SIEFKE.

Court of Appeals of New York.

Jan. 15, 1895.

Appeal from common pleas of New York city and county, general term.

Action by the Farmers' Loan & Trust Company, as committee for Frederick Siefke, against Henry Siefke. From a judgment of the general term (22 N. Y. Supp. 546) affirming a judgment for defendant, plaintiff appeals. Affirmed.

David McClure, for appellant.

Brainard Tolles, for respondent.

ANDREWS, C. J.

The complaint alleged that the note sued upon was given for value, and was under the hand and seal of the defendant. The answer contained a general denial of the allegations in the complaint, and in separate paragraphs, stated to constitute separate defenses, alleged that the note was without consideration, and that it was altered in material parts, and, among other things, by affixing a seal thereto without the consent or privity of the defendant. On the trial the note was offered in evidence by the plaintiff, and he then rested. The execution of the note by the defendant seems to have been admitted, as no proof was given upon the subject. It purported to be signed by him, and a seal was attached to his signature. The defendant thereupon entered upon the defense. The question of consideration was litigated, and the defendant also gave proof tending to show that the seal was attached without his knowledge or consent, by the plaintiff, after the execution and delivery of the note. The evidence on the part of the defendant, as to the alteration by the addition of the seal, was met by evidence in behalf of the plaintiff that the seal was attached before execution. The case was submitted to the jury, under a charge of the judge, and the jury rendered a general verdict for the defendant. Judgment was entered on the verdict, from which the plaintiff appealed to the general term, which affirmed the judgment, and this appeal is from the judgment of affirmance.

The allegations of error are founded mainly upon the charge to the jury. The judge charged, in substance, that if the seal was attached to the note by the plaintiff after execution and delivery, without the knowledge or consent of the defendant, it constituted a material alteration, and the note was void. There was no exception to this part of the charge, and it must be taken, on this point, to have correctly stated the law. We are not to be understood, however, as dissenting from this view, but it is unnecessary now to consider it. The court furtherproceeded to charge that the plaintiff was bound to establish, by a preponderance of evidence, that the seal was not attached after the signature to the note. This was qualified afterwards by the statement that this burden rested upon the plaintiff after testimony had been given to show that the seal was attached after the inception of the note. The plaintiff's counsel excepted to the charge, as made and explained. This exception presents the principal question in the case. We think the charge was correct. Upon the pleadings, a general denial having been interposed by the answer to the whole complaint, the plaintiff was bound to establish every material fact therein alleged. The primary issue was the execution or nonexecution by the defendant of a sealed instrument. The plaintiff alleged the making by the defendant of a speciaity creating a pecuniary obligation, and, issue having been taken on this allegation, the plaintiff was bound to establish the allegation by proof. If it had turned out on the trial that the allegation had been made by mistake, and that the instrument was not sealed, but was a simple contract only, or that the seal had been attached after execution, by a stranger, without the privity or knowledge of the plaintiff, it would have been in the power of the court to have permitted an amendment of the pleadings upon such terms as it should deem just. But, as the pleadings stood, the question whether the defendant had executed a sealed instrument was an issuable fact, which was asserted on one side and denied on the other, and which the plaintiff was bound to establish, as a part of his case. The defendant, under a general denial, may adduce evidence to controvert what the plaintiff is bound to prove in the first instance. Milbank v. Jones, 141 N. Y. 345, 36 N. E. 388, and cases cited. And the general rule is well established that whatever a plaintiff is bound to prove in the first instance, as part of his case, he is bound to establish by a preponderance of evidence. The burden of proof upon the issue of a material alteration of a written instrument, sued upon in its existing condition, presents no anomaly, but is governed by the general rule that the party alleging that the instrument sued upon is the act and deed of the defendant must establish it by proof. The case of Schwarz v. Oppold, 74 N. Y. 307, is a precise authority for the proposition that, under a general denial in an answer in a suit brought upon a written obligation, a material alteration may be proved. Under this authority, we see no escape from the conclusion that evidence of alteration, which goes to the identity of the instrument, controverts a fact which a plaintiff is bound to prove in the first instance,-that the instrument is the act of the defendant.

There is confusion, sometimes, in treating of the burden of proof, arising out of unexact definitions. The burden is upon a plaintiff to establish his cause of action, when it is, in proper form, denied by the other party. In actions upon a promissory note, this...