
    Mary McKay et al., Resp’ts, v. Allen Lasher et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 3, 1890.)
    
    1. Evidence—Code Civ. Pro., §§ 935, 936.
    A deed executed in 1875, being inadmissible by reason of the acknowledgment having been taken by one Lawrence, who was not then a notary, defendants, to prove its execution, procured the affidavit of Lawrence as-subscribing witness to be taken before a notary in 1885. To rebut the deed thus offered plaintiff was allowed to show that from 1882 to 1886 Lawrence was an incompetent witness through senile dementia. Held,, no-error. ......
    2. Same—Proof of handwriting.
    A disputed writing may be compared with any writing proved to the satisfaction of the court to be genuine, and where many of the signatures with which the disputed one is compared were proved by persons who had seen the party write on other occasions, and who had no doubt upon inspection that the signatures presented were genuine, and the court was satisfied of such fact, it was not error to admit the evidence.
    3. Same—Expert mat use blackboard.
    An expert as to handwriting may make illustrations on a blackboard before the jury for the purpose of explaining his testimony and rendering it more intelligible to them.
    4. Same—Hearsay.
    The court refused to allow a witness for defendants to prove a declaration of her husband alleged to have been made when he executed the deed in controversy, that he owed grantee and wanted to secure him by this deed. Held, no error.
    Appeal from judgment of supreme court, general term, third department, affirming judgment entered upon verdict of jury at Ulster county trial term.
    
      William W. Northrop, for app’lts; F. L. Westbrook, for resp’ts.
    
      
       Affirming 19 N. Y. State Rep., 815.
    
   Peckham, J.

The defendants urge here several grounds for a reversal of this judgment. I will mention them in their order.

(1.) It is claimed that the learned trial court erred in permitting the plaintiffs to introduce evidence regarding the mental condition of one Joseph G. Lawrence from 1882 down to 1886, when he died.

In order to comprehend the force of the objection, a few facts must be here stated.

Joseph C. Lawrence was the subscribing witness to the execution of an alleged .deed from James Clark and wife to Pierre Crouch, which deed purported to have been executed in the year 1875, and the acknowledgment of the grantors purported to have been taken by Lawrence, as a notary public, in that year. It was, however, admitted that Lawrence, in 1875, was not a notary public. The plaintiffs claimed the deed was a forgery. The defendants based their defense upon its genuineness, and in order to prove its execution (the acknowledgment before Lawrence certified by him as notary public in 1875 being worthless because he was not then a notary) the defendants, in June, 1885, procured the affidavit of Lawrence as subscribing witness to the deed to be taken before a notary, and the affidavit and the notary’s certificate of such sworn acknowledgment being put on the deed, it was thus made receivable in evidence without calling Mr. Lawrence, under § 935 of the Code of Civil Procedure. But by § 936 of the Code, the certificate is not conclusive, and it may be rebutted, and if it appear that the proof was taken upon the oath of an interested or incompetent witness, the conveyance is not received until its execution is established by other competent proof.

When the defendants offered in evidence the deed from James -Clark and wife to Crouch, with the affidavit of Lawrence as subscribing witness, taken before Sackett, a notary public, the defendants had made out a prima facie case for the admission of .such deed, and the burden then rested upon the plaintiffs of showing that for some one or all of the reasons mentioned in the statute the deed should not be received in evidence until its execution should be established by other competent proof. This burden the plaintiffs endeavored to sustain by proof that from 1882 down to 1886, when he died, Mr. Lawrence was an incompetent witness by reason of loss of mind induced by senile dementia, under which disease he was suffering during those years, and from the effects •of which he died in the year above stated. No question arises as to the character or sufficiency of this proof, as there is no motion for the nonsuit of plaintiffs or for a direction of a verdict for defendants, and no exception to the judge’s charge, no portion of which is given.

The contention of the counsel for the defendants, as stated in his brief, seems to be that the evidence of imbecility of mind should have been directed to the time when Mr. Lawrence became subscribing witness to the deed in 1875, and not to the time when he proved its execution by his ex parte oath in 188q, The .statement of the objection is, as it seems to me, as conclusive an answer to it as could be framed were pages to be written on the ■subject. It was by virtue of his oath of 1885 that the deed was made prima facie admissible in evidence, and if at that time Mr. Lawrence was an incompetent witness by reason of imbecility of mind, the plaintiffs made out a perfect answer to its admission, and rendered it thoroughly worthless until otherwise proved. There was no error in the ruling of the court upon that subject.

(2). It is argued by the defendants’ counsel that the court erred in permitting incompetent evidence to prove the handwriting or signature of James Clark to other instruments for the purpose of putting them in evidence and subsequently comparing them with the alleged signature of James Clark to the deed to Crouch. The claim of the defendants’ counsel seems to be that no writing can be admitted in evidence for the purpose of comparison under the act of 1880, excepting such as some witness can prove He saw the party write. This claim is not well founded.

The statute, chap. 86 of the Laws of 1880, permits by its very terms comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine. How that proof is to be made depends, as I should suppose, upon the general rules of evidence applicable to the proof of a party’s handwriting, the only condition being that such specimen must be proved to be-genuine to the satisfaction of the court In this case" many of the signatures were proved by persons who had seen Clark write on other occasions, and who had no doubt upon inspection that ,the signatures presented to them were genuine, ana the court was satisfied of such fact, and admitted them in evidence. In that decision no error is apparent.

(3). It is next claimed that the court erred in permitting an expert witness as to handwriting, called by plaintiffs, to make illustrations on the blackboard before the jury for the purpose of explaining his testimony and rendering It more intelligible to them. In this we see no error.

Lastly, the defendants urge that the court erred in refusing to permit the witness Mrs. Susan Clark, called for the defendants, to prove a declaration of her husband, James Clark, alleged to have been made when he executed the "deed in controversy, that he (Clark) owed Mr. Crouch, and that he wanted to secure him by this deed.

As I have said, the deed in question was alleged by plaintiffs to have been forged. Mrs. Clark (James, her husband, being dead) was a witness for the defendants, who claimed title to the premises in question by virtue of this deed, and claimed that it was an absolute and valid instrument. The witness had already proved the execution of the deed by her husband and herself, and she was then asked the question as to what her husband said, and the offer was made as above stated. There would seem to be several answers to the claim of the defendants. It will be noticed that it is not an offer to prove ás a fact that James, her husband, did in reality owe Crouch at this time, but it was a mere hearsay declaration which in no wise proved the fact itself as against these plaintiffs, even assuming such fact to be admissible. Again, even if the court had admitted the declaration and assumed that it proved the fact alleged, it would then have shown that the grantor, James Clark, was only a mortgagor, for it would have shown that the conveyance was in fact a mortgage, a mere security for the subsequent payment of a debt, and the title to-the premises would have still been in the plaintiffs and no defense to the action would have been made out.

The jury having the evidence of Mrs. Clark before them a,s to-the execution of the deed by her husband and herself, together with all the other evidence in the case, entirely disbelieved her testimony, and we cannot think that the least possible harm has. been done the defendants in shutting out this evidence by her as to her husband's declaration, in view of the fact that her evidence-already before the jury was disbelieved by that body.

These are all the errors alleged ripon which the defendants’ counsel based his claim for a new trial.

For the reasons already given, as well as for those so well stated in the opinion of the learned judge at the general term, we think the judgment should be affirmed, with costs.

All concur.  