
    William B. Sudlow et al., App’lts, v. Sigmund Warshing et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Deed—Record of—Evidence—Certified copy of record of deed not conclusive—Code Civ. Pro., §§ 935, 936.
    To prove their title to certain land the defendants showed a transcript of the record of a certain conveyance, duly certified hy the register under his seal. Held, that the proof was not conclusive upon plaintiffs, and it was open to them to contest its force and efiect upon them. Code Civ. Pro., §§ 935, 936.
    2. Same—Presumptive evidence of truth of record.
    The rule in such cases is to allow a deed, which has been recorded, to be read as presumptive evidence of the truth of the record itself and of the fact of the conveyance of the title.
    3. Same—Expert testimony oe genuineness oe signature.
    An expert in handwriting was called as a witness by the defendants and asked: ‘‘What evidence, if any, do you find in the signatures to the disputed deed of their being simulated imitations instead of genuine signatures?" Plaintiff excepted to the allowance of the question. It appeared that two of the grantors in the deed were dead and that the plaintiffs, while denying the genuineness of the signatures in the disputed deed, testified that they bore a resemblance to their signatures and to those of the deceased grantor. Comparisons of the disputed deed with other writings conceded to be genuine were also made with the witnesses. Bdd, that there was sufficient to warrant the allowance of the question. Distinguishing Mowing v. Manly, 49 ÍT. Y., 192.
    Appeal from a judgment of the general term of the court of common pleas of Hew York county, affirming a judgment in favor of defendant, entered upon a verdict rendered by a jury at a trial term of said court.
    
      Edwin I. Spink, for app’lts; £. P. Nash, for resp’ts.
   Gray, J.

In this action the plaintiffs sought to recover the possession of certain lots of land in the city of Hew York, as the heirs-at-law of their father, John W. Sudlow, deceased, to whom the premises had been conveyed in 1867, by John A. Livingston.

The defense was a conveyance by John W. Sudlow’s widow and heirs to one Daniel Bates in 1868, under whom, through several mesne conveyances, the defendants hold possession.

The execution of the deed to Bates was denied by the plaintiffs and its validity formed the issue in this case. The jury found for the defendants and thus established the genuineness of the deed. There was evidence to support their verdict and we are concluded by it as to that question. Exceptions were taken by the appellant during the trial of the case which present certain questions of law for us to review.

The appellants excepted upon the trial to the admission of the exemplified copy of the deed in dispute, on the ground that the fact of the execution and acknowledgement* of the deed was in dispute. The exception is untenable.

To prove their title the defendants showed a transcript of the record of the conveyance to Bates, duly certified by the register under his seal, and thus satisfied the requirements of the statute. The proof was not conclusive upon plaintiffs, and it was open to them to contest its force and effect upon them. Code Civil Pro., §§ 935, 936; 1 B. S., 759, §§ 16, 17; 760, § 26. The, rule in such cases, as sanctioned by the statutory enactment, is to allow a deed, which has been recorded, to be read as presumptive evidence of the truth of the record itself and of the fact of the conveyance of the title. An expert in handwriting, called as a witness for the defepdants, was asked by their counsel, this question: “What' evidence, if any, do you find in the signatures to the disputed deed of their being simulated imitations, instead of genuine signatures?” The question was allowed and the witness answered: “None, whatever.”

Plaintiffs excepted to the allowance of this question and base their exception on the case of Kowing v. Manly, decided by this court in 1872 (49 N. Y., 192).

What was precisely decided in that case was that where the plaintiff had not introduced any evidence to show that a paper, produced and relied upon by the defendants, was. in a simulated handwriting, but had merely testified that it was not written by him, it was not competent for the defendants to offer evidence to prove that the paper was in a simulated handwriting. In the present case a state of facts is presented which did not exist in the case cited. Here two of the grantors in the deed were dead, namely, the widow and a son of John W. Sudlow. These plaintiffs, while denying the genuineness of the signatures to the disputed deed, testified that they bore a resemblance to their signatures and to those of the deceased grantors, and, in at least one instance, the witness testified to the signature being a fair imitation of his own. Comparisons of the disputed deed with other writings conceded to be genuine were also made with the witnesses. That was sufficient to warrant the allowance of the question.

In Miles v. Loomis (75 N. Y., 288) it was decided that it was competent for experts, upon a comparison of signatures, without any other knowledge of testator’s writing to express an opinion as to whether the disputed writing appeared a natural or simulated hand.”

Since the decision in Kowing v. Manly, chapter 36 of the Laws of 1880 was passed, by which the rules of evidence in respect of disputed handwritings were enlarged beyond what had been permitted under then existing rules. Peck v. Callaghan, 95 N. Y., 73.

No other exception calls for our consideration, in the exclusion or admission of evidence upon the trial. We think no error was committed in the charge to the jury. It fairly enough presented the case to the jury with proper instructions as to the law governing the issues.

At the close an opportunity was given to plaintiffs’ counsel to look over the requests which he had previously handed to the trial judge, and to see if there was anything he desired to be further charged. Not haying availed himself of the opportunity thus presented his exception to the judge’s refusal to charge them without a further request was improper.

There being no error committed upon the trial, the judgment must be affirmed.

All concur.  