
    The People, Resp’ts, v. William N. Loew, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 3, 1892.)
    
    1. Forgery—Endorsement of check—Evidence.
    Defendant was indicted for forgery in signing the name of his client on the back of a check payable to her which he had procured in settlement of claims against an insurance company. The payee of the check testified that she never authorized defendant to sign her name, but he claimed, to have received such authority from her husband, who transacted all her business and signed her checks. The husband denied this. Held, error to refuse to allow defendant to corroborate his version by the testimony of a witness as to a conversation in which the husband authorized him to endorse the check with his wife’s name when received.
    2. Same—Cross-examination.
    It was error to refuse permission to cross-examine the payee as to any verbal authority given to her husband at any time, on the ground of the existence of a written authority.
    3. Same—Charge.
    It is error in such case to refuse a request to charge that if the jury believe that the husband directed or told defendant to sign the check in the name of his wife, and defendant in good faith believed that the husband had the authority, they should find the defendant not guilty, and such error is not cured by a charge that the jury must find affirmatively that when defendant put the endorsement on the check he did so for the purpose of cheating and 'defrauding.
    Appeal from a judgment of the court of general sessions of the peace convicting the defendant of the crime of forgery in the second degree.
    
      Albert Bach, for app’lt; Henry B. B. Stapler, for resp’ts.
   Barrett, J.

The indictment charged the defendant with the crime of forgery in the second degree, in that on the 14th day of June, 1887, at the city of Mew York, he feloniously forged the name of C. Shulhoff on the back of a check for $1,750 on the Mational Shoe & Leather Bank; C. Shulhoff being the payee of the check and the defendant having received the check as her attorney in settlement of certain claims against an insurance company. Upon the trial C. Shulhoff, who was Mrs. Clara Shulhoff and the wife of one Richard L. Shulhoff, testified that she never authorized Loew to put her name on the back of the check and "that she never received any of its proceeds. She admitted that her husband acted for her in all business transactions, signing checks and receipting bills, and that in no instance did she sign her name. The defense was that the check was endorsed by the authority of the husband ; and Loew testified to such authority. This again was denied by Mr. Shulhoff, and the question of -veracity was fairly submitted to the jury. The difficulty, how ever, is that the learned court ruled out evidence which was-competent upon this latter issue. If it was competent to show authority from the husband and proper to permit its denial, it-was equally competent to corroborate either side on that head.

Yet, after permitting Mr. Shulhoff to testify that he never knew of the existence of the check at the time it was endorsed and collected, never, in fact, spoke to Loew about it and consequently never authorized its endorsement, the learned court refused to-permit Loew to prove by a witness named David Eeiss that he, Eeiss, heard a conversation between Shulhoff and Loew, in the* latter’s office, in which it was “ understood and agreed that Loew should receive the money arising from the settlement of the insurance, and that when he received the check he, Loew, might endorse it in Shulhoff’s wife’s name.”

Clearly this was error, and as the issue of the husband’s authority was submitted to the jury, the error must have prejudiced the defendant.

We think, too, the circumstances of the case were such that this, issue was material, and that if Mr. Shulhoff actually did authorize Loew to endorse his wife’s name upon the check, he either had authority to permit this, or at least such apparent authority as to warrant the court in submitting the bona fides of the act to the jury.

The defendant was not guilty if he had fair ground to consider that he had authority to endorse the check, and upon that head he had a right to show the circumstances under which the act was done. It was error also to hold the defendant to the strict terms of the written power of attorney which Mrs. Shulhoff gave to her husband. She might have given her husband other and verbal authority at any time, and the defendant should have been permitted to cross-examine her as to any such verbal authority or as to any previous declarations which she may have made with regard thereto. It was error to exclude this cross-examination upon the ground of the existence of a written authority.

It was also error to decline to charge as requested, “ That if the-jury believe that Mr. Shulhoff directed or told Mr. Loew to sign that check in the name of his wife, and Loew in good faith believed that'Shulhoff had the authority, they should find the defendant not guilty.”

We think the proposition was correct, and that the defendant-had a right to its submission in this concrete form. The point was hardly covered by a general statement that the jury must find affirmatively that when Loew put the endorsement on the-check, he did so for the purpose of cheating and defrauding.” This statement was made in response to the request to charge the specific proposition, and the jury may well have inferred that the intent to cheat and defraud was sufficient, even if Loew in good faith believed that Mr. Shulhoff had authority to direct him to endorse the check in Mrs. Shulhoff’s name, and in fact did so direct him.

The judgment should he reversed and a new trial granted.

Van Brunt, P. J., and O’Brtex, J., concur.  