
    EMELINE MOREY, Plintiff and Appellant, v. THE SAFE DEPOSIT COMPANY OF NEW YORK, Defendant and Respondent.
    Handwriting.—Evidence.—Proving or Disproving by Comparison of Descriptions.
    1. Cannot be proved or disproved by a comparison of the description given by an expert in handwriting, of the formation of the letters, in writings not put in evidence, but as to which the uncontradicted proof is that the handwriting thereof is genuine, the characteristics of such letters, the manner of their formation, and the movements by which they were formed, with a similar description of the writing in dispute given by the same or another expert.
    3. The admission of the testimony of experts giving such descriptions of the said writings other than the one in dispute is error.
    Before Jones, McCunn and Freedman, JJ.
    
      Decided December 31, 1871
    Appeal from judgment.
    This is an action of claim and delivery brought to recover from defendants the possession of certain United States government bonds which are averred to belong to the plaintiff.
    
      The answer admits the incorporation oí the company, the possession of the bonds, a demand made for them and a refusal to deliver, but denies all the ‘other allegations of the complaint.
    Thus, the only point in issue was as to the owner- . ship.
    The plaintiff claimed title through the possession of a certificate of deposit issued by the defendant, stating the receipt of the bonds from ¡Nathaniel Frost on his account, an assignment purporting to- be signed by said Frost, conveying to the plaintiff the bonds and certificate of deposit, and a written order purporting to be signed by said Frost, directing defendant to deliver the bonds to the plaintiff.
    The defendant disputed the gemiiness of the signature to the assignment and order.
    Evidence was given on both sides by witnesses who had seen Mr. Frost write, as to whether the signatures were his or not—some averring that they were, others that they were not.
    In the course of the trial the defendant put on the stand a witness, who stated his business to be the examination of disputed handwriting, and asked him this question: State the characteristics as to the signatures to the assignments and order (Exhibit 4) now shown yon ? In answer to this question, the witness gave a lengthy and minute description of the formation of the various letters composing the signatures, their characteristics, the manner of their formation, and the movements by which they were formed.
    He was'then shown by defendant’s counsel the defendant’s book of receipts of deposits, and shown the signature “¡Nathaniel Frost” therein, and asked: State to the referee the distinctive marks or characteristics of the handwriting of that signature ?
    The question was objected on the ground that the book was not in evidence, and as having nothing whatever to do with the same. The objection was overruled and the plaintiff excepted.
    The witness then in answer to the question gave a detailed and minute description of the formation of the letters in this signature, their characteristics, the manner of their formation, and the movements by which they were formed.
    Defendant’s counsel then further asked the witness: Look at the signatures on the receipt book marked 1200 to 1245 (being the signatures “Nathaniel Frost,”) and give the characteristics ? The same objection was taken to this question as to the last preceeding one, the same ruling was made, and the same exceptions was taken. In answer to this question, the witness gave a detailed and minute description of the letters of the signature, their characteristics, the manner of their formation, and some of the movements by which they were formed. Previous to this testimony the defendant, under plaintiff’s exception, had given evidence that the signatures “Nathaniel Frost,” in these two books were in his own proper handwriting, but there was no admission of their genuineness.
    Neither the books nor the signature “Nathaniel Frost” therein contained had been put in evidence, nor were they put in evidence at any time during the trial.
    
      George Day, attorney and of counsel for appellant.
    
      James R. Whiting, attorney and of counsel, and E. M. Wight, of counsel for respondent.
   By the Court. —Jones, J.

The object of the testimony clearly was to lay a basis whereby the referee could compare the handwriting of the signatures, which defendants claimed to be genuine, with that of those which. were alleged to be spurious, and thus furnish him with a criterion by which to arrive at the conclusion, that the signatures to the papers through which plaintiff claims were forgeries. In no other aspect was the evidence as to the handwriting of the signatures in the two books relevant or material. As there was no other ground on which the testimony was admissible, the referee must have admitted it for that purpose and in that view. The testimony was evidence in the case, and we cannot say that the referee in arriving at his decision did not make the comparison, the basis for which was thus laid, and was not materially influenced thereby in arriving at the conclusion which he has reported.

The question then is whether the evidence as to the signatures in the two books was competent.

It may now be regarded as the law of this State, that for the purpose of showing the genuineness of a signature in controversy, it is inadmissible to compare it with signatures to other papers unless those other papes are in evidence in the cause, and material to the issue, or perhaps admitted to be genuine, and that the signatures in said other papers (except as above stated) cannot be submitted to jury for their comparison with the disputed one (Van Wyck v. McIntosh, 14 N. Y. 439 ; Dubois v. Baker, 30 Id. 355, 362).

Although these signatures were on the trial exhibited to three or four witnesses, it may be that they were not exhibited to or seen by the referee, although that is rather a violent assumption. However that fact may be, the comparison of a full and detailed description of the other signatures with the one in dispute, or with a full and detailed description of the one in dispute falls within the above rule, and, if anything, is more pernicious and open to more objection than the comparison of the signatures themselves.

I think there was substantial error in admitting the evidence as to the signatures in the books, and for that reason the judgment should be reversed.

Judgment reversed, new trial ordered, and reference vacated, with costs to the appellants to abide the event.  