
    David H. Sprague, Resp’t, v. Edward Sprague et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    Evidence—Handwriting.
    A witness who, though he never saw the intestate write, narrates occasions when he received papers from him under such circumstances as left no doubt that they were written by him, is qualified to express an opinion as to the genuineness of his signature.
    Appeal from a judgment entered on a verdict for plaintiff, and ■t, from an order denying a motion for new trial.
    
      C. D. Van Name, for app’lts; Louis S. Phillips, for resp’t.
   Brown, P. J.

—This action is upon a promissory note made by the defendants’ intestate. The answer denied the making and delivery of the note, and any indebtedness thereon. The main question of fact litigated upon the trial was as to the authenticity of the note, and the verdict of the jury has, upon ample testimony, determined that question in the plaintiff’s favor. The question of consideration did not arise upon the pleadings. The answer was in effect a general denial, and that put in issue all facts which plaintiff was bound to prove to make out his cause of action. Milbank v. Jones, 141 N. Y. 340; 57 St. Rep. 429. A promissory note, whether it expresses value received or not, imports a consideration, and the burden rests upon the defendant to prove the fact is otherwise. Carnwright v. Gray, 127 N. Y. 92; 38 St. Rep. 56. As the answer did not plead that defense, the court was correct in its charge that there was no question of that kind in issue. The fact that the payee of the note was the maker’s mother did not take the case out of the operation of the rule cited.

Exception was taken to the admission of certain specimens of the deceased’s handwriting, and also to the evidence of Edward Sprague that the signature to the note was that of the deceased. This witness testified that he never saw the deceased write, but he narrated occasions when he received receipts and other papers from him under circumstances which left no doubt that they were written by the deceased. In our opinion the witness was qualified to express an opinion as to the genuineness of the signature to the note, and the papers were properly admitted in evidence for the purpose of comparison. The statute (chapter 555, Laws 1888) makes such writings admissible when “ proved to the satisfaction of the court to be the genuine hand-writing ” of the person who it is'claimed executed the disputed instrument; and, if this witness was to be believed, no reasonable doubt existed as to the genuineness of the papers admitted.

No other question requires notice. The judgment and order must be affirmed, with costs. All concur.  