
    Emma E. Dryer, Resp’t, v. Elon G. Brown, as Surviving Executor of Harvey Barnard, deceased, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 12, 1889.)
    
    1. Promissory notes—Forgery—When evidence of want of means ADMISSIBLE.
    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 is admissible.
    2. Same—Action against executor—Waiver of statute of limitation—Relief.
    In an action against a party as an executor, if it appears that in waiving the statute of limitations as a defense he has exceeded his authority, and. can make a proper case for relief from the stipulation, he should present such case to the special term and ask to have the same vacated, or to be at liberty to amend his answer, setting it up as a defense.
    
      3. Evidence—Comparison of hand writing—Expert testimony.
    Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine, should be permitted to be made by witnesses,_ properly qualified to speak, and where as experts they are called upon to give opinions, they should be allowed to explain the reasons for them.
    4 Referee—Refusal to find.
    A refusal of a referee to find a fact substantiated by a preponderance of-evidence, is a refusal to find in accordance with the weight of testimony on the subject.
    Appeal from a judgment entered upon the report of a referee, after confirmation at special term by an order, and refusal to set the report aside, made by an order of the special term in Oneida.
    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. 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 stipulated 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, ex cepting the subject of costs.” Thereafter an amended com plaint and answer were served, joining issues, which were tried before the referee.
    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.
    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 life-time, and that said notes are not the genuine notes oí 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 life-time, no consideration therefor, or for either of said notes, and that each of said notes is illegal and void, and without consideration.”
    
      Edward D. Matthews, for app’lt; Sayles, Searle & Sayles, for resp’t.
   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 whether the notes were delivered if genuine for any consideration to the plaintiff, 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 parties 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 ease shows that the objection was sustained, and an exception was taken by the defendant. We think the testimony was competent.

In Darling v. Westmoreland (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 payor was a borrower of money, is admissable.” Wiggin v. Plumer, 31 N. H., 251; Demerritt 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 accomodation 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 Adm's v. Elmendorf's Adm’s, 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 Ex'rs (16 Wend, 425). The precise question presented by these objections seems to have been considered, and the objection overruled in a recent decision in the supreme court of Illinois. Thorp v. Goervey, ' The Reporter,’ Vol. 5, No. 21, p. 619, January 21, 1878.”

A similar question arose in this court in the case 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. See section 413 of the Code of Civil Procedure. 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 to that, 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 limitation;' 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 limitation 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; Willcox v. Smith, 26 Barb., 355.

Second. 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 claimant as incompetent, improper and calling for a conclusion of the witness as to what is the characteristic of Barnard’s handwriting.

The referee remarked, viz.: “I think that it is too broad.” Thereupon the defendant took an exception.

At fol. 143 the witness said: “I will refer first to the capital ‘ H ’ in the signature; taking the ‘ H ’ of the 85,000 note, I find a letter beginning (witness refers to his blackboard, and asks to be allowed to illustrate thereon his meaning in evidence).” The plaintiff objected. The referee remarked, viz.: “ Why refer to the blackboard ?”

Again the witness was asked, viz.: “His handwriting and characteristics, 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 (fol. 148).

Again, at fol. 162, 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 (fol. 162).

Again the witness was asked : “ Can you illustrate upon . the blackboard, and show more clearly the difference which you point between the disputed and genuine signatures ?” That question was objected to as improper and immaterial. 1 The witness answered “I think so thereupon the defendant’s counsel asked the witness the following question : “I will ask you to illustrate upon the blackboard the differences you have specified, the chief ones ?” This was objected to, and the objection was sustained, and the defendant took an exception (fol. 167).

We think the referee did not allow the latitude usually indulged in the examination of an expert witness, nor follow the rules approved in McKay v. Lasher (19 N. Y. State 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), Du Bois v. Baker (40 Barb., 562); S. C. affirmed (30 N. Y., 355), Bank of Commonwealth v. . Mudgett (44 N. Y., 523).

Chapter 36 of the Laws 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 hand-writing, when speaking as a witness only from a comparison of hand-writing, that is, with two pieces of it in juxtaposition under the 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 in chief or cross; nor can there be fair means of meeting his testimony ’ by that of other witnesses.” Remington Paper Co. v. O’Dougherty (81 N. Y., 487) was tried before the passage of chapter 36 of the Laws of 1880.

Third. 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.

Fourth. 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., concurs; Merwin, J., not sitting.  