
    Hoyt, Administrator, &c., v. Stuart, Executor of A. Gray, deceased, Defendant and Appellant.
    1. When the defense is, that the signature to the paper on which the action is brought is a forgery; signatures of the defendant to other papers which are not relevant to the issue, nor competent evidence in the cause generally, cannot be proved and submitted in evidence, for the purpose of instituting a comparison between them and the disputed signature.
    2. In such a controversy, the signatures of the party to other papers, cannot be submitted to the Court or jury, for the mere purpose of instituting a comparison; nor can they be examined or inspected by the Court or jury, when the papers on which they are written are not themselves, by reason of their contents, evidence in the cause generally.
    (Before Bosworth, Hoffman and Pierrepont, J. J.)
    Heard, June 15;
    decided, July 3, 1858.
    
      This is an appeal by the defendant from a judgment rendered against him. The action was tried before Mr. Justice Hoffman in December, 1856, without a jury; a trial by jury having been waived. It was commenced in May, 1853, against Joseph Stuart, as executor, &c., of Andrew Gray, deceased, defendant, by J. Edwards Hoyt as plaintiff. The latter having died, pendente lite, the action was continued, by order dated May 1st, 1855, in the names of Wm. S. Hoyt and Maria L. Hoyt, administrator and administratrix of said J. Edwards Hoyt, deceased, as plaintiffs.
    The action was brought to compel the defendant to assign to the plaintiff one hundred shares of the stock of the Manhattan Company of the City of New York, or pay the value thereof, on the allegation that Andrew Gray, by written instrument signed and sealed by him, dated June 5th, 1851, (and marked exhibit A,) sold such stock to J. Edwards Hoyt, for $5,500 paid therefor.
    The defense is, (in substance,) that exhibit A is a forgery; that the entire claim is a fraud on the part of J. Edwards Hoyt; and was not heard of by Andrew Gray in his lifetime,
    It appeared, on the trial, that Andrew Gray died in October, 1851, in Europe.
    Several witnesses were examined on behalf of the defendant, who testified that they were familiar with the handwriting of said Andrew Gray, and that in their opinion the signature of his name to Exhibit A was not his writing. Among others, William Watt testified thus: “I knew Gray in his lifetime; I am familiar with his handwriting.
    “ Is shown Exhibit A, and says: I should think this signature was not his.
    “ Oross-examined.—I have seen his signature, quite recently, in Mr. Stuart’s office, chiefly on checks—fifteen or twenty of them; they were shown me by one of the Stuarts; the signatures appeared to be his; I saw them this morning. . . .
    “Is shown the checks, and signature, and is asked:
    
      “Q. Is the handwriting to the signature of that Exhibit A, freer than the signature to the check of Gray’s, Mr. Gerard handed to you ?
    “ Objected to by defendant’s counsel, that it is improper to institute a comparison of handwriting.
    
      “ Objection overruled, and defendant’s counsel then and there duly excepted.”
    James M. Morrison, cashier of the Manhattan Bank, was .also examined on behalf of the defendant.
    On his cross-examination by the plaintiffs, he produced five dividend receipt books of the Manhattan Company, containing five several receipts, purporting to be signed by Andrew Gray; the signatures to which, the witness testified, that he believed to be Gray’s.
    “ The plaintiff offered to exhibit the five signatures in said receipt books to the Court, in order to show that the signature . of said Gray was not uniform, and that the A in Andrew sometimes had the up stroke on the bottom left hand side.
    “ The defendant objected.
    “The court overruled the objection, and defendant excepted.”
    The Court gave judgment in favor of the plaintiffs for $5,500, with interest from December 1st, 1851.
    From that judgment the present appeal is taken.
    
      James W. Gerard and John H. Hand, for the defendant and appellant.
    
      K P. Gowks, for the plaintiffs and respondents.
   By the Court.

Bosworth, J.

—The evidence admitted, makes the signatures of Gray on papers which are not relevant to the issue nor evidence in the cause generally, a test of the accuracy of the opinions of witnesses as to the genuineness of the signature to Exhibit A.

It makes the other signatures evidence, for the sole purpose of securing the inspection of them as genuine signatures and necessarily results in instituting a comparison by the Court, between them and the one in question.

It opens, first, a collateral issue as to the genuineness of the other signatures, which the law will not tolerate; and then, if their genuineness be proved, admits them as evidence to impeach the knowledge or the accuracy of the opinions of those who x have pronounced the signature in question to he a forgery. Such evidence puts it in the power of the Court or jury that is to determine the disputed question of fact to institute a comparison 'between the signatures; and such was the purpose for which, in this case, its admission was pressed.

When it is not, avowedly, admitted for such a purpose, but on some other pretence, it subjects a defendant to the hazard of having the verdict of the jury, or decision of the Court, influenced by the opinion formed on a comparison of signatures.

Such evidence is in the nature of impeaching evidence; not direct, but indirect and argumentative. The opinions in Van Wyck v. McIntosh, in the Court of Appeals (reported, since this cause was decided, in 14th N. Y. R., p. 439), cover the exceptions now under consideration, and show them to be well taken. Doe, ex dem. Perry, v. Newton, (5 Ad. and Ellis, 514), and Griffits v. Ivery, (11 id., 322), are direct to the point, that signatures to papers cannot be the subject of evidence at all, for the mere purpose of testing the opinions of witnesses by the agreement or disagreement of such signatures with the one in controversy; or, by way of comparison, to influence the decision as to the genuineness of the disputed signature.

It follows that the judgment must be reversed, and a new trial be granted, with costs to abide the event.

Judgment accordingly.  