
    The Equitable Trust Company of New York, Appellant, v. Anton Larsen, Respondent.
    (Supreme Court, Appellate Term,
    December, 1911.)
    Execution of written instruments — Formal requisities — In general — Evidence of execution — Sufficiency of evidence.
    Where one sued as the maker of a promissory note testified that while he had no distinct recollection as to signing it the signature thereto looked like his, and would neither aifirm nor deny positively that the signature was his but stated out of court that the note was signed by one having the name subscribed to the note, who he said was his brother, and it appeared on the trial that the name subscribed was in fact his own name and that his brother’s name was different, there was sufficient prima facie proof to justify the reception of the note in evidence and its exclusion was error.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, bo'rough of Manhattan, seventh district, dismissing the complaint at the close of the plaintiff’s case.
    ’-McLear & McLear (Herbert Gr. McLear of counsel), for appellant.
    Louis Boehm, fo-r respondent.
   Lehman, J.

The plaintiff sues upon a negotiable instrument which it attempted to introduce in evidence but which was excluded because the defendant’s signature was not properly proven. The plaintiff attempted to prove this signature by the testimony of the defendant himself, but the defendant claimed to'have no distinct recollection as to the signing of this document which, it was claimed, was executed in the year 1904. He would not affirm or deny positively that the signature was his own but did testify several times that “ it looked like ” his signature. In addition to this testimony the plaintiff showed by the process server that, when he served the defendant with the summons, he showed him the instrument and asked him if he remembered signing it, whereupon the defendant said: “ That is the signature of Anton Larsen, but I guess you have got the wrong man; Anton Larsen is my brother.” The process server than asked him how he knew that that was the signature of Anton Larsen, and defendant answered: Well, I know it, that is the signature of Anton Larsen, but I am not Anton Larsen, Anton Larsen is my brother.” It was further shown that the person served was Anton Larsen and that his brother’s name was John Larsen. It seems to me that the testimony of the defendant, who certainly must be held to know his own handwriting, that the signature looked like his, coupled with an unqualified admission by the defendant out of court that the paper was signed by Anton Larsen, was amply sufficient prima facie proof to allow the admission of the instrument in evidence.

The respondent relies, as authority for the correctness of the ruling of the trial justice excluding this paper, upon the case of Farrell v. Manhattan R. Co., 83 App. Div. 393. That case is, however, no authority for his contention. The witness called in that case was the son of the person whose signature was sought to be proven. He testified that the signature seems like ” his father’s signature, but he could not tell as he had not seen his father’s signature in many years. The court there said (at pu 398): “ The only witness called to prove the signature testified that he had no recollection of having seen his father write.; no recollection of his father’s signature, and disclaimed sufficient knowledge which would enable him to testify as to the genuineness of the signatures exhibited to him. His belief upon the subject, in the absence of knowledge of Ms father’s handwriting, would be of no consequence.”

Here, however, we have the testimony of the defendant himself, who may certainly be presumed to have knowledge of his own handwriting, that the signature looked like his, and testimony of his admission out of court that the signature was that of Anton Larsen.

Judgment should he reversed and a new trial granted, with costs to appellant to abide the event.

Gxegerich and Pendleton, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  