
    McKay et al. v. Lasher et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    November 20,1888.)
    1. Evidence—"Writing—Comparison ivith Other Writings.
    Laws N. Y. 1880, o. 36, which allows comparison of a disputed writing “with any-writing proved to the satisfaction of the court to be genuine, ” leaves the pi-oof of' the writing offered for comparison to the discretion of the trial court, and does not. require it to be proved by admission, or by direct evidence of one who saw the person write it.
    
    3. Same—Expert Testimony—Explanation—Reasons por Opinion.
    It is not improper to permit an expert witness to explain upon a blackboard his-meaning, and the reasons for his opinions.
    3. Deed—Execution—Proop before Notary—Competency op Witness.
    Under Code Civil Froc. N. Y. §§ 935, 936, which provides that, if it shall appear-that the proof of a conveyance was taken upon the oath of an incompetent witness, the conveyance shall not be received in evidence until established by other and competent proof, it is proper, in an action wherein the controversy relates to the-genuineness of a deed which was proved before a notary public by a subscribing-witness, to admit evidence to show that at that time the subscribing witness>was-of feeble body, weak mind, and subject to delusions, and unfit for business.
    4. Same—Admissions op Deceased Grantor.
    In an action for timber wrongfully out and removed, it appears that the land, from which it was cut was owned by F., who died intestate, leaving plaintiffs and, C. as heirs at law. C. died intestate, leaving plaintiffs as his heirs at law, Defendants claimed under a deed from C., which was alleged to he a forgery. Held, that statements by C., after the date of the deed, that he owned no realty, was not admissible as against plaintiffs, especially where they were not so connected, with the deed as to be evidence of its genuineness.
    Appeal from circuit court, Ulster county.
    Action by McKay ancl others to recover value of timber and bark cut and: removed by defendants from lands in the town of Hardenburgh, Ulster county, ST. Y., and claimed to be owned by plaintiff. It was conceded by both parties that the premises in question belonged to, and were occupied by,, one Patrick Clark, in his life-time. Patrick Clark died in the year 1847, leaving him surviving, as heirs at law, the plaintiffs, and his son, James Clark. James Clark died intestate in 1882, leaving the plaintiffs his only heirs at law. The defendants by their answer alleged that Patrick Clark left a will, by which he devised the premises in question to his son, James, and that James conveyed them to one Pierre Cranch, and he to Dearick Dawson, who is the owner of them, and that defendants cut timber and bark under and by virtue of such title. The plaintiffs on the trial proved their title to the premises, as the heirs-at law of Patrick Clark and of James Clark, and value of timber and bark cut and removed. The defendants then proved the will of Patrick Clark devising the premises to his son, James, and the occupancy of it by James up to his-death, in 1882. The will was admitted in evidence, as proved to be the last will and testament of Patrick Clark, and the clause devising these premises. The defendants also put in evidence what purported to be a deed of the premises from James Clark to Pierre Cranch, and deed from Cranch to Dawson; power of attorney of Dawson to Frederick D. Thorns; and contract by Thorns, as attorney for Dawson, to Elbert Lasher, selling the bark and timber; and also assignment of the contracts to the defendants. The plaintiffs claimed that the deed was a forgery, that James Clark never signed it, and that his name to it was not written by him. From a judgment entered on a verdict for $571.62, in favor of plaintiffs, defendants appeal.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      M. Bchoonmaker, for appellants. Dewitt Griffin, for respondents.
    
      
      On the general subject of the proof of handwritings by comparison, and the writings admissible for the purpose of the comparison, see People v. Parker, (Mich.) 34 N. W. Rep. 730, and note; Riordan v. Guggerty, (Iowa,) 39 N. W. Rep. 107, and cases cited;, U. S. v. Mathias, 36 Fed. Rep. 893.
    
   Learned, P. J.

The judge’s charge is not printed in the case, and there are no exceptions thereto. There was no request to direct a verdict for defendants, and there was no motion for a new trial. Therefore, we have before us only the exceptions to evidence. The first arises under chapter 36, Laws 1880, which allows comparison of a disputed writing “ with any writing proved to the satisfaction of the court to be genuine. ” The defendants insist that such proof of genuineness must be by admission, or by the direct evidence of one who saw the person write the offered writing. This law introduced a new rule, which had not existed here, though it had in Massachusetts and some other states. Here the rule was that the disputed writing might be compared with other writings which had been given in evidence for other purpose than comparison. Miles v.Loomis, 75 N. Y. 288. Such writings under the old law might have been proved by the testimony of persons familiar with the handwriting. When thus proved and admitted in evidence, they could be used in comparison. This statute allowed writings to be proved merely for the purpose of comparison. But there is nothing in the statute specifying the mode of proving them. Why may they not be proved in the same manner in which any other writing might have been proved before the act? Furthermore, they are to be proved “to the satisfaction of the court. ” This seems to put the matter exclusively in the j udgment of the trial court, (Peck v. Callaghan, 95 N. Y. 73,) unless, possibly, in a case where there was an entire absence of evidence. That is not this case. It is true that in Massachusetts, where there is no statute on the subject, it was stated in a criminal case that a writing to be used for comparison (not otherwise used in evidence) must be proved by direct evidence of the signature, or by equivalent evidence. Com. v. Eastman, 1 Cush. 217. But the question was not involved in the case, nor do we find it to be supported by the authorities cited,—Moody v. Rowell, 17 Pick. 490; Richardson v. Newcomb, 21 Pick. 317; or by Martin v. Maguire, 7 Gray, 177.

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.

The defendants urge that there was error because the court excluded the statement made by James Clark to his wife, at the time of the execution of the alleged deed to Cranch, that he owed Cranch, and wanted to secure him. The defendants say that plaintiff had proved that Todd paid Clark rent up to his death, and that, by showing this deed to be in fact a mortgage, the fact of paying rent to Clark would be explained. But on looking at the case we find that Todd was defendant’s witness, and that on their behalf he testified that he occupied the place till Clark’s death, and paid rent to Clark. We think the offer was properly excluded.

The controversy in the case was as to the genuineness of a deed from James Clark and wife to Pierre Cranch, dated May 4,1875. This deed purported to. have been acknowledged before .Joseph C. Lawrence, a notary public, May 4, 1875. But it appeared that Lawrence was not then a notary public. Lawrence was also a subscribing witness; and as such, on the 13th of June, 1885, he proved the deed bei'ore a notary. On this proof the deed was received in evidence. To discredit this proof the plaintiffs gave evidence tending to show that in 1882, and subsequently till his death, in February, 1886, Lawrence was of feeble body, of weak mind, and subject to delusions, and unfit for business. The object of this was to show that Lawrence was an incompetent witness. The section of the Bevised Statutes to which the plaintiffs refer was repealed by chapter 417, Laws 1877. But its substance is now found in the Code of Civil Procedure, §§ 935, 936. This latter section provides that if it shall appear that the proof of a conveyance was taken upon the oath of an incompetent witness the conveyance shall not be received in evidence until established by other and competent proof. It seems, therefore, that it was proper to give evidence tending to show that when Lawrence, in June, 1885, proved this deed, he was mentally incompetent to act.

Again, the defendants.claim that there was error in refusing to admit proof that subsequent to the date of the deed Clark said he owned no real estate. The plaintiffs claim as heirs at law of James Clark, (or, if need be, of Patrick, his father.) To defeat their title by statements of James Clark that he owned no real estate would not be proper; nor do we think that such statements were so connected with the alleged deed that they could be taken as evidence of its genuineness. They did not in any way point to or recognize the alleged deed. These are the objections raised by the defendant. On examining them we see no error. Judgment affirmed, with costs. All concur.  