
    Albert G. Graham, App’lt, v. George Richardson, Ex’r, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    Bills ahd holes—Fobgeby.
    In an action on two promissory notes the defendant’s witness testified that a keeper of the prison requested him to obtain from the maker, who was a convict, his signature to two pieces of paper at the bottom thereof, each of which was headed by a petition for a pardon, leaving a space sufficient for a note, and that he did so. The keeper denied this, and stated that he drew the notes at the maker’s request, and that the notes were written on the same page of the half sheet. On inspection the lower edge of each note appears as originally cut by the manufacturers. Held, that the evidence was sufficient to carry the question of forgery to the jury and to sustain their verdict in favor of defendant.
    Appeal from a judgment entered in Wayne county March 4, 1890, and from an order denying the plaintiff’s motion for a new trial, made upon the minutes of the court.
    
      W. H. Coon, for app’lt; J. F. Kinney, for resp’t.
   Macomber, J.

The defendant is the executor of the last will and testament of Edward Mahar, deceased, who died in the state’s prison in the city of Auburn, N. Y, August 7, 1888, while serving a term under a sentence for manslaughter for killing his wife.

The plaintiff brings this action against his executor to recover upon two promissory notes, one of $8,000, and the other of $1,000, purporting to have been made at Auburn May 2, 1888, and payable one year after date, with interest, respectively, and purporting to be signed by-the defendant’s testator, Edward Mahar. The answer put in issue the making and delivery of the notes. Upon the trial evidence was given, which the jury have manifestly believed and acted upon, to the effect that one John M. Devore, a keeper of Auburn State Prison at the time mentioned, under pretence of having Mahar sign a petition to the governor for his own pardon, obtained a signature to two pieces of paper which now turn out to be, in form, promissory notes, written at the bottom of each half sheet of legal cap, affixed to which was the body of each note respectively, in the handwriting of Devore.

The witness, James Scanlan, who was a convict at Auburn state’s prison at the same time, testifies, that he saw these pieces of paper, but not as they now appear, and saw Mahar sign liis name to them. At that time no writing was immediately above the signature. He testifies that at the head of the page for a few lines was a petition to the governor for a pardon of Mahar. He further testifies that Devore told him to have Mahar sign his name at the bottom so as to leave room to make out a note on each page just above the signature, and the witness points to certain marks indicating where he was to tell Mahar to sign his name.

The witness, John M. Devore, called for the plaintiff, testified that he saw Mahar sign the notes at Auburn prison in the finishing shop at the desk. He says a convict by the name of Johnson came in there with him and asked him to write a note. He says he drew the notes at the request of Mahar. He further testifies that he supposes that Johnson took the notes away with him. This witness denies all conversation with Scanlan about" the notes. Devore testified that the two notes were written upon the same page of the half sheet of legal cap. In this he positively contradicts, as in other matters, the statement of Scanlan, and this contradiction is, perhaps, the most controlling circumstance in the case touching the credibility of these two men. Scanlan confessedly was a man without character; but he has narrated the events as he says they occurred in the prison with apparent truthfulness. When these notes were produced and examined, it was found that the signature was, in fact, at the bottom of the two half sheets and were not made both upon the same page, one near the bottom and the other higher up upon the page. The lower edge of each paper, it is stated in the case (and the jury had the exhibits before them), appeared, not as it would be if torn off below the signature at the time of its execution, but rather as originally cut by the manufacturers.

This evidence made a case which was required to be submitted to the jury upon the question of forgery. H Mahar’s signature was obtained in the manner related by Scanlan, the transaction was clearly a forgery, because the signature was obtained, not under mere pretense that he was signing a promissory note to be used for one purpose, but under the pretense that it was a petition only and not in any respect an obligation for him to pay. The jury was justified in reaching its conclusion. The whole case shows that there was good ground for them to believe that there was a conspiracy to obtain from Mahar, without consideration and without his knowledge, commercial paper, purporting to be executed by him, of just about the value of his entire estate.

The jury might also under the testimony have reached a conclusion favorable to the defendant upon the other branch of the case, namely, that the plaintiff himself was not a Iona fide holder for value of either of these notes. But it is hardly necessary to go into that branch of the case, inasmuch as we are well satisfied that the jury reached the correct conclusion upon the question of fact above mentioned, and that there was no exception to the evidence or the charge relating to this subject which is available to the plaintiff on this appeal.

Heither of the pretended notes ever had a legal inception, and the judgment and order appealed from should, therefore, be affirmed.

Dwight, P. J., and Corlett, J, concur.  