Oneida County NyArchives Court.....Dryer, Emma Vs. Elon Brown 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 11:11 am

Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

EMMA E. DRYER, Respondent, v. ELON G. BROWN, as Surviving Executor, etc., of 
HARVEY BARNARD, Deceased, Appellant.

Evidence of want of pecuniary means — when competent as against a party seeking 
to recover an alleged loan — waiver by an executor of the, defense of the 
statute of limitations — examination of an expert as to handwriting.

In an action, brought to enforce payment of notes made by a decedent, against 
his executor who interposes the defenses of usury and of a want of 
consideration, evidence on the part of the defense tending to show that the 
payee of the note, who is alleged in the complaint to have loaned the money 
constituting the consideration therefor to the decedent, was not possessed of 
any property or money, and had not the pecuniary means to make the loan, is 
competent.

Nicholls v. Van Valkenburgh (15 Hun, 230); Pontius v. People (21 id., 331; 
affirmed, 82 N. Y., 339) followed.

Quoere, whether an executor can, by stipulation, waive the defense of the 
statute of limitations existing against a claim created by the decedent in his 
lifetime.

The degree of latitude which will be allowed in the examination of an expert 
witness, called to testify as to the genuineness of handwriting, considered.

McKay v. Lasher (19 N. Y. St. Rep., 816) followed; Hynes v. McDermott (82 N. Y., 
49) distinguished.

Appeal by the defendant from a judgment, entered upon the report of a referee in 
the Oneida county clerk's office August 27, 1888, after its confirmation at the 
Oneida Special Term, by an order entered in said office August 24, 1888, and 
from an order, entered in said office August 24, 1888, refusing to set said 
report aside.

Harvey Barnard died in April, 1883, leaving a will, which was admitted to 
probate, of which the defendant Brown is the surviving executor. In February, 
1884, the executor advertised, in accordance with the statute, for the 
presentation of claims against the estate About March 4,1885, the plaintiff 
presented to the executor a verified notice of her claims against the estate, 
consisting of four promissory notes mentioned in the findings of fact by the 
referee hereinafter set forth. The executor rejected the claims and refused to 
pay the same. On the 6th of May, 1885, the plaintiff and the defendant entered 
into an agreement "that the said matter in controversy be referred, pursuant to 
the statute." That agreement named a referee; upon it was indorsed the approval 
of the surrogate of Oneida, bearing date the 6th of May, 1885, approving "of the 
person named as referee in the foregoing agreement." 

Subsequently, and on the 30th of April, 1887, the attorneys agreed by 
stipulation upon another referee "to hear, try and determine" the issues, and 
that either party might enter an order to that effect. Thereupon an order was 
entered referring the issues to the referee who heard and determined the same. 
It does not appear that the surrogate ever approved of the substituted referee. 
On the 14th of May, 1885, the attorneys entered into the following 
stipulation: "It is hereby stipulated by and between the parties and their 
attorneys, in the above-entitled matter, that the claimant shall serve a 
complaint setting forth her claim, and the defendant herein shall serve an 
answer in the same manner and subject to the same rules of law as though the 
action was pending upon service of summons in the Supreme Court, and that the 
issues, generally, shall be submitted to a referee and the cause tried therein 
and thereunder with the same force and effect as though the action was pending 
in the Supreme Court, excepting the subject of costs." 

Thereafter an amended complaint and answer were served, joining, issues, which 
were tried before the referee.

The answer contained a denial of the allegations of the complaint, and also set 
up "that the signatures thereto are not the genuine signatures of the said 
Harvey Barnard, deceased, and were not made by him in his lifetime, and that 
said notes are not the genuine notes of the said Harvey Barnard, and were never 
delivered by him to the said plaintiff as his genuine notes, or at all; and the 
said notes are and were inoperative and void, and without consideration therefor 
whatever, and each and every one of said notes was and is void and without 
consideration. * * * That said plaintiff gave to said Harvey Barnard, in his 
lifetime, no consideration therefor, or for either of said notes, and that each 
of the said notes is illegal and void and without consideration."

The referee found that Harvey Barnard executed a promissory note for $500, dated 
December 25, 1875, to the plaintiff; another promissory note, dated December 25, 
1876, for $500, payable to the plaintiff; another promissory note dated June 4, 
1881, for $2,000, payable to the plaintiff, and on June 3, 1882, another 
promissory note for $5,000, payable to the plaintiff. The first two notes 
mentioned above were non-negotiable and the last two were payable to the 
plaintiff or order.

Edward D. Matthews, for the appellant.

Sayles, Searle & Sayles, for the respondent.

Hardin, P. J. :

Plaintiff gave evidence upon the trial tending to establish the genuineness of 
the signatures of the deceased to the several promissory notes mentioned in the 
report of the referee, and the defendant gave evidence strongly tending to 
indicate that the notes were forgeries, and were not executed or delivered by 
the deceased to the plaintiff. The issue of fact was so closely contested as to 
whether or not the signatures were genuine or not, as well as to whether the 
notes were delivered, if genuine, for any consideration to the plaintiff, that 
we are of the opinion that any erroneous ruling that may have been made by the 
referee cannot be said not to have prejudiced the party against whom the 
determination was made.

During the trial the plaintiff was put upon the stand to contradict the 
testimony of Mr. Miller and Mr. Williams, two very important witnesses for the 
defendant. She denied explicitly essential points of their testimony in regard 
to the notes and the several interviews which they detailed having had with her 
in respect thereto. During the course of her cross-examination, the defendant 
offered "to show that she had no property," thereupon the referee remarked: "I 
think it is too remote," and then the case shows that the objection was 
sustained and an exception was taken by the defendant. We think the testimony 
was competent.

In Darling v. Westmorland (13 Am. Rep., 71) the court said, viz.: "In an action 
on a note alleged to have been given for money loaned, the defense being that 
the note is a forgery and the loan a fiction, evidence tending to show the 
payee's want of means to make the loan, and evidence tending to show that the 
payee was a borrower of money, is admissible." (Wiggin v. Plumer, 31 N. H., 251; 
Demeritt v. Miles, 22 id., 523; Angier v. Ash, 26 id., 99.)

In the case of Nicholls v. Van Valkenburgh (15 Hun, 230) it appears that an 
action was brought against executors upon a promissory note, and that the answer 
interposed "was a general denial, payment, want of consideration, and that the 
note was made solely for the accommodation of the said Borst, the payee." The 
defense was sought to be sustained by circumstantial evidence, "in the course of 
which the defendant gave in evidence many circumstances tending to show the 
financial situation of Martin I. Borst, and also of D. A. Van Valkenburgh, at 
and about the time when the note purported to have been made; and afterwards, 
after the note, by its terms, purported to have become due and remained unpaid, 
with a view not only of showing, from the transactions of the parties, the 
probability that the note was signed at the time and for the purpose claimed by 
them, but also of showing by inference the improbability that, if the note 
represented an actual and bona fide claim against Van Valkenburgh in favor of 
Borst, it would have been permitted by the latter to have remained overdue, and 
without any demand of payment or attempt to collect the same in the lifetime of 
Van Valkenburgh." Both descriptions of testimony of this character were taken 
under the objection of plaintiff's counsel as to inadmissibility for the purpose 
of showing the financial position of the parties, and on the ground that it was 
wholly irrelevant to any of the issues in the case. Judge Talcott, who delivered 
the opinion in that case, said: "The evidence admitted was offered as only one 
of the various circumstances tending to establish the fact that the alleged note 
did not represent an actual and valid claim of Borst against Van Valkenburgh, 
and we think, in this case, it was properly admitted for the consideration of 
the jury, together with the other evidence bearing on the subject. (Waddell's 
Admr. v. Elmendorf's Admrs., 10 N.Y., 171; Burlew v. Hubbell, 1 T. & C., 236; 
Stevenson v. Stewart, 11 Penn., 307; examined in Woods v. Gummert, 67 Penn. St., 
136; and the remarks of the chancellor and Senator Mason in Miller v. Smith's 
Exrs., 16 Wend., 425.) The precise question presented by these objections seems 
to have been considered, and the objections overruled in a recent decision of 
the Supreme Court of Illinois. (Thorp v. Goervey, The Reporter, vol. 5, No. 21, 
p. 619, May 22, 1878.)"

A similar question arose in this court in the case of Pontius v. People 
(reported in 21 Hun 331; S. C., affirmed, 82 N. Y., 350), and Smith, J., 
remarked in regard to the question, viz.: "Testimony as to the pecuniary 
condition of the defendant was not irrelevant." The same case was referred to 
approvingly in Poucher v. Scott (33 Hun, 225). In Abbott's Trial Evidence (at 
page 247, section 21) it was said, viz.: "If the making of any loan whatever by 
plaintiff is denied, evidence of his poverty at the time is competent as tending 
to disprove it."

In the answer served there was no defense of the statute of limitations. The 
Code provides that that defense must be taken by answer. (Code of Civil Pro., § 
413 ; Dezengremel v. Dezengremel, 24 Hun, 457.) It is insisted, in behalf of the 
appellant, that, as the reference under the statute is a special proceeding, 
that any defense is allowable. The respondent replies that the parties have by 
their own act, evidenced by their stipulation, consented that the issues to be 
tried shall be such as are embraced within the pleadings. It is competent for a 
party to waive a statutory provision in his behalf, but as this is a proceeding 
not against Brown in his individual capacity, it may be questionable whether he 
could bind the persons interested in the estate rightfully by a waiver of the 
statute of limitations; however that may be, the conclusion we have reached on 
the other branch of the case renders it unimportant to pass upon that question 
at this time. If the defendant shall be advised that the stipulation ought not 
to remain, or that he had no right to waive the statute of limitations as a 
defense, and in doing so has exceeded his authority as an executor, and can make 
a proper case for relief from the stipulation, he should present such case to 
the Special Term and ask to vacate the stipulation, or to be at liberty to amend 
his answer, setting up the statute of limitations. (Dayton's Surrogate, 318; 
Willard on Executors, 317; Wilcox v. Smith, 26 Barb., 355.)

When the witness Daniel T. Ames, an expert in handwriting, or "a pen artist," 
was being examined, it appeared that he had studied very extensively the 
signatures of Barnard upon genuine instruments, and on the alleged signatures 
upon the notes in question, and he was asked by the defendant, viz.: "From your 
examination, what do you find the nature and characteristics of Barnard's 
handwriting, as indicated by the exhibit referred to on your traces?" This was 
objected to by the plaintiff as incompetent, improper and calling for a 
conclusion of the witness as to what is the characteristics of Barnard's 
handwriting. The referee remarked, viz.: "I think that is too broad." Thereupon 
the defendant took an exception. In another part of his evidence the witness 
said: "I will refer first to the capital 'H' in the signature; taking the 'H' of 
the $5,000 note, I find a letter beginning (witness refers to his blackboard, 
and asks to be allowed to illustrate thereon his meaning and evidence)." The 
plaintiff objected. The referee remarked, viz.: "Why refer to the blackboard?" 
Again the witness was asked, viz.: "His handwriting and characteristic, then, 
was to commence the 'H' on which side?" The witness answered: "The rule is no 
initial whatever, but more frequently to the right." The plaintiff's counsel 
moved to strike out the answer, and the referee remarked, viz.: "I think the 
objection is good." An exception was taken by the defendant's counsel. Again, 
the witness said "that there are no extreme and radical departures from the 
customary length or habitual length of the genuine signatures. State the same as 
to initial sweeps." The plaintiff objected to it as incompetent and improper. 
The referee sustained the objection, and defendant took an exception.

Again the witness was asked: "Can you illustrate upon the blackboard and show 
more clearly the difference which you point out between the disputed and genuine 
signatures?" That question was objected to as improper and immaterial. The 
witness answered: "I think so." Thereupon the defendant's counsel asked the 
witness the following questions: "I will ask you to illustrate upon the 
blackboard the difference which you have specified, the chief ones?" This was 
objected to and the objection was sustained and the defendant took an exception.

We think the referee did not allow the latitude usually indulged in the 
examination of an expert witness, nor follow the rule approved in McKay v. 
Lasher (19 N. Y. S. Rep., 816). In that case the court observed, viz.: "The next 
objection is that an expert witness was allowed to explain upon a blackboard his 
meaning and the reasons for his opinion. We think there was no error in this. Of 
course the whole class of expert evidence is exceptional. And as experts are to 
give opinions, it is right that they should explain the reasons for them." (See 
Roe v. Roe, 8 Jones & Spencer 1; Dubois v. Baker, 40 Barb, 562; S. C., affirmed, 
30 N. Y., 355; Bank of Commonwealth v. Mudgett, 44 id., 523.) Chapter 36 of the 
Laws of 1880 provides as follows: "Comparison of a disputed writing with any 
writing proved to the satisfaction of the court to be genuine, shall be 
permitted to be made by witnesses in all trials and proceedings, and such 
writings, and the evidence of witnesses respecting the same, may be submitted to 
the court and jury as evidence of the genuineness, or otherwise, of the writing 
in dispute." 

(Hilsley v. Palmer 32 Hun, 474; Peck v. Callaghan, 95 N. Y., 73.)

There is nothing in Hynes v. McDermott (82 N. Y., 49) adverse to the views 
already expressed. In that case the originals from which the copies were made 
were not brought before the court, and there was no proof of the exactness from 
the photographic copies, and it was there remarked, viz.: "An expert in 
handwriting, when speaking as a witness only from a comparison of handwriting, 
that is, with two pieces of it in juxtaposition under his eye, should have, 
before him in court the writing to which he testifies and the writings from 
which he testifies, else there can be no intelligent examination of him either 
to chief or cross; nor can there be fair means of meeting his testimony by that 
of other witnesses." Remington Paper Company v. O'Dougherty (81 N. Y., 487) was 
tried before the passage of chapter 36 of the Laws of 1880.

We are of the opinion that the preponderance of evidence is with the defendant 
in respect to what transpired between the plaintiff and the witness Miller, and 
the witness Williams, at the time she exhibited notes to them referred to in 
their testimony, and that the refusal of the referee to find in accordance 
therewith was a refusal to find in accordance with the weight of the testimony 
upon the subject of those interviews.

While we recognize the rule that it is within the province of this court to 
examine all the evidence bearing on the disputed questions of fact, and 
determine whether the report of the referee is in accordance with the weight of 
evidence (Finch v. Parker, 49 N. Y., 1), yet, inasmuch as the conclusion which 
we have reached in the preceding part of the opinion will lead to a new trial 
where the questions of fact must be fully presented upon the testimony already 
given, as well as upon such as either side may produce in addition thereto, we 
do not think it opportune to pass upon the main questions of fact involved in 
the issues between the parties.

We think the judgment and order should be reversed, and a new trial ordered 
before another referee, with costs to abide the event.

Martin, J., concurred; Merwin, J., not sitting.

Judgment and order reversed, and a new trial ordered before another referee, 
with costs to abide the event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/oneida/court/dryer756gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 17.9 Kb