
    John McCormick, Appellant, v. Annie A. Shea, Impleaded, Etc., Respondent.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Rescission of contracts — By mutual agreement — Canceling signature on note.
    Negotiable instruments — Indicia or requisites.— Cancellation of signature.
    The holder of an indorsed promissory note who authorized and agreed to the cancellation of the indorser’s signature is bound thereby although there is no consideration for the cancellation.
    In an action upon the note, the fact that the crossing out of the indorser’s name was made by his representative in the plaintiS’s presence, is a fact which the jury may consider in determining whether the cancellation was unauthorized or consented to as claimed by the respective parties.
    Under section 204 of the Negotiable Instruments Law (L. 1897, eh. 712) the burden is upon plaintiff to' show that the signature of the indorser was canceled without authority.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, entered in favor of the defendant upon the verdict of a jury, and also from an order denying plaintiff’s motion for a new trial.
    David Bernstein, for appellant.
    Franklin Bien (Josiah Canter, of counsel), for respondent.
   Gildersleeve, J.

The action is on a promissory note against the defendant Thomas J. Shea, as maker, and defendant Annie A. Shea, as indorser. Said Thomas J. Shea, the maker, does not defend the action. There is a very sharp conflict of evidence as to the facts, and the jury found for the defendant. Plaintiff appeals. It is conceded that, before maturity, the indorsement of said Annie A. Shea was canceled. This was done by a representative of defendant’s attorney who scratched out the indorser’s name in the presence of plaintiff. The parties were negotiating with respect to claims of each against the other, and it is the contention of defendant that as a part of a compromise plaintiff consented to the cancellation of said indorsement. Plaintiff, on the other hand, claims he never authorized such cancellation and protested against the same. He further claims that there was no consideration for such cancellation. Even so, - if he did, in point of fact, authorize and agree to this cancellation, the indorser was released, as a person secondarily liable on a negotiable instrument is discharged “by the intentional cancellation of his signature by the holder.” Neg. Inst. Law, § 201; Larkin v. Hardenbrook, 90 N. Y. 333; Schwartzman v. Post, 94 App. Div. 474. The fact that the crossing out of the indorser’s name was made not by the plaintiff personally, but by defendant’s representative in his presence, was a fact which the jury might have considered in determining whether the plaintiff’s or the defendant’s version of the facts was the correct one. They believed the defendant’s version. It is not sufficient for the purpose of a reversal, on the ground that the result is against the weight of evidence, that the Appellate Court may have reached a different conclusion upon the facts than that arrived at by the jury, if there is sufficient evidence to support the verdict. In order to justify a reversal it must clearly appear that the fair preponderance of proof is really on the side of the defeated party. Lorenz v. Jackson, 88 Hun, 202; Clinton v. Frear, 107 App. Div. 571. In the case at bar, there is considerable evidence, which, if believed, justifies the verdict. This evidence the jury were at liberty to believe, and the Appellate Court does not feel warranted in setting aside the verdict. The learned counsel for the appellant urges that the court erroneously charged as 'follows: “Whenever any signature on a note appears to have been canceled, the burden of proof lies upon the party who alleges the cancellation was made under mistake or without authority; and, therefore, the plaintiff in this case has the burden of proof to establish that fact.” There was no error here. The negotiable Instruments Law, section 204, provides that: “A cancellation made unintentionally, or under a mistake, or without the authority of the holder, is inoperative; but where an instrument, or any signature thereon, appears to have been canceled, the burden of proof lies on the party who alleges that the cancellation was made unintentionally,, or under a mistake, or without authority.” In the case at bar, the signature of the indorser appeared to have been canceled, and plaintiff claimed it was canceled without authority. The burden, therefore, was on him to show that it was so canceled without authority. There are no other exceptions that require discussion.

The judgment and order appealed from must be affirmed, with costs.

Davis and Clutch, JJ., concur.

Judgment and order affirmed, with costs.  