
    Oliver Arms, Resp’t, v. William D. Arms, as Executor, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Promissory note—When prima eacie case made out—Considera-
    tion—Agreement to marry.
    In an action on a promissory note given in consideration of marriage, the note was proved. Held, that a prima facie case was made out for the plaintiff.
    2. Same—Evidence—When defendant must disprove genuineness ce-
    note
    The defendant denied that the paper was ever given as a note or that there was any consideration for it. Held, that unless there was some evidence given on the part of the defendant which legitimately tended to show that the note was not the genuine note of the decedent, the prima facie case of the plaintiff was not disturbed.
    3. Same—Forgery—Evidence.
    When the defense is that the note was forged, and the evidence given in support of such defense amounted to nothing more than the vaguest suspicion, Held, not sufficient to prove forgery.
    4. Same—When evidence not conclusive.
    Where a defendant takes the evidence of the plaintiff before trial, and such evidence is read on the trial, the former is not bound by such evidence.
    5. Same—When evidence incompetent to disprove note.
    The fact that the will of the alleged maker of the note contained no-provision for the payment of the note was incompetent evidence as against the plaintiff and was properly excluded.
    6. Same—When evidence of oral agreement competent.
    Evidence of an oral agreement offered for the purpose of showing what was the consideration of the written instrument in suit and in the. hands of the plaintiff was competent.
    Appeal from a judgment, supreme court, general term,, fourth department, affirming a judgment in favor of the-plaintiff.
    The plaintiff and defendant’s testator were husband and wife having intermarried December 21, 1882. Two days before marriage they entered into an ante-nuptial contract •which provided that the plaintiff should be given therefor a note of $300 payable at the death of the husband, and. thirty dollars March 20, 1883, and every six months thereafter during his life. The provision was to be in lieu of dower. At the same time the testator executed and delivered the $300 note which recited: “It being in consideration that said Olive Fuller shall marry and become my wife on or before, the 1st day of January, 1883.” It is. claimed that on the 2'Tth day of February, 1883, the husband gave the plaintiff another note for $1,000 in further consideration of marriage. The plaintiff presented this note to the executor as a claim against'the estate. _ The executor rejected the claim and offered to refer under the statute. The plaintiff declined a reference and commenced suit. The defendant denied that the paper was ever given on a note, or that there was any consideration for it. On fee trial the plaintiff recovered a judgment for the amount of the note and interest, less a small set-off held by the defendant.
    Upon the trial the court received evidence over defendant’s objection and exception that there was an oral agreement outside of and auxiliary to the ante-nuptial • contract, and that the $1,000 note was given in consideration of the ■oral contract.
    
      Watson M. Rogers, for app’lt; Levi H. Brown, for resp’t.
    
      
       Affirming 13 N. Y. State Rep., 196.
    
   Peckham, J.

—The only question, as we think, in this case is whether it should have been submitted to the jury to decide upon the genuineness of the note sued on by the plaintiff. The court did submit to the jury the question whether there was any consideration for the note, and charged'that unless it were given pursuant to an agreement made prior to, and in contemplation and consideration of marriage, .although executed subsequent thereto, the note was without consideration and was void. The proof in regard to the ■execution of the note, when the plaintiff first rested, was that of a witness who was entirely familiar with the handwriting of the alleged maker, and who testified to his belief that the signature at the end of the note was genuine. The counsel for the defendant then upon being asked •stated that they did not intend to give any evidence on the -question of handwriting, and the plaintiff’s counsel called no other witness on that point. The defendant’s counsel added that they disputed the execution of the paper. It was admitted that the body of the note was in the handwriting of the plaintiff. The signature of the note being thus proved, and substantially admitted, aprima fiacie case. was made out, and the plaintiff rested.

Unless there was some evidence given on the part of the ■defendant which legitimately tended to show that the note was not the genuine note of the decedent, the prima facie ■case of the plaintiff upon that point was not disturbed, and there was no issue of genuineness to be submitted to the jury. The announcement of the counsel for the defendant that they disputed the execution of the note, taken in connection with the substantial admission of the genuine character of the signature to the same, clearly Indicates that they meant to prove, or give evidence upon the subject of the forgery of the note- not as to the signature, but as to the fact" that a note had been written over the signature without the knowledge of the alleged maker. Forgery (so far as this branch of the case goes) was the defense, in substance, which was to be made, and upon which evidence was to be given.

We have looked in vain through the case for some evidence upon which the jury could legitimately be asked to infer such forgery. There is nothing which is stronger than the vaguest suspicion—a mere guess that possibly it was so, but no evidence of such fact or of any fact from which the main one would be a fair or natural inference. The note may have been obtained from the maker under such circumstances as would have rendered it void, but such evidence would have had no bearing upon the forgery issue.

In order to prove his case, the defendant showed that the alleged maker had been engaged in moving from one house to another on the day on which the note purports to be signed, and from seven o’clock in the morning until late in the afternoon, he was shown to have been so engaged that it would have been (as is claimed) difficult to have signed a note without being seen. But he had only to sign his name. The body of the note, it is admitted, was in the plaintiff’s handwriting, and certainly it does not take a very long time to sign one’s name, and his name may have been signed before seven o’clock, or at some time during the day when the witnesses who were sworn were not at that moment present. Because they did not see him sign it, is not the least evidence that it was not signed by him.

It was also shown that the defendant was about eighty-seven years of age and lived in the same village with his son in whom he apparently had confidence, and with whom he was accustomed to advise on business matters, and that he said nothing to him about such a note. The ante-nuptial agreement which was in writing and omitted all mention of the $1,000 note, was put in evidence and showed, as defendant says, that the only consideration for the marriage was the execution of the $300 note by the decedent. It is said, also, that the fact of the execution of the $1,000 note was not spoken of by plaintiff, excepting to one person, during the life-time of the defendant. This is in substance all the evidence of forgery that was given. The execution of the note having been proved by proof of the handwriting of the maker, the genuine character of which was admitted, we are unable to say that there was evidence enough bearing upon the question of forgery to submit it to the jury. Whether the note was obtained through fraud or deceit is a totally different question, and one which was not withheld from the jury, as the court submitted to them the question whether the note as signed was for any reason not valid. This included the question of the alleged want of consideration.

The defendant took the evidence of .the plaintiff before-trial, and it was read in evidence on the trial; and in her deposition she swore to the genuineness of the note and to the consideration therefor, and that it was a valid and fair note. The plaintiff claimed on the trial that as the defendant bad called the plaintiff, and taken her evidence, he was-bound by it. We do not think so. The cases of Becker v. Koch (104 N. Y., 394), and Cross v. Cross (108 N. Y., 628),. are conclusive on the point. The plaintiff also gave some additional evidence as to an admission of the defendant to-a witness that he had given such a note. The strength of plaintiff’s case, however, consisted in the absence of evidence of any forgery upon the part of the defense. We cannot say that the case was free from suspicion, but mere-suspicion was not enough to submit the question of forgery to the jury.

The defendant’s counsel also offered to prove by the defendant that it was the custom of his father, the alleged maker of the note, to sign instruments some little distance below the last of the writing; but it was excluded. Such evidence is of the vaguest and weakest possible nature, and even if strictly admissible, we do not think that added to the other evidence there was enough to carry the case to the jury upon the issue of forgery.

There was no error in excluding the will of the alleged maker of the note. It was not offered for the purpose of putting in evidence an instrument containing a genuine signature of the defendant wdth which to compare the signature to the note, for the latter signature was also admitted to be genuine. It was a subsequent declaration or act. of the maker with which the plaintiff had nothing to do, and which could in no way bind her. The fact that it contained no provision for the payment of the $1,000 note was incompetent evidence as against the plaintiff; and hence the will was properly excluded.

The evidence of the alleged oral agreement was given,, not for the purpose of proving a substantive agreement not-in writing and made upon consideration of marriage. It. was given for the purpose of showing what was the consideration of the written instrument then in the hands of the plaintiff and upon which the action had been brought. Such evidence has always been held proper. It did not-contradict the ante-nuptial written agreement. It simply showed other considerations than those named therein, for the marriage.

We are unable to see that any legal error was committed on the trial, and the judgment must therefore be affirmed^ with costs.

All concur.  