
    Manhattan Life Insurance Company, Resp’t, v. Morris Alexander, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    1. Bond—Execution.
    Where a person, whose name is signed to a bond, represents and duly acknowledges it to be his signature, there is an execution of the bond by him, though the signature may have been written by some one else.
    3. Trial—Failure to call witness.
    No inference can be drawn against a party because of the absence of a witness, where such-party had duly subpoenaed the witness and procured an attachment against him to compel his attendance.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial.
    
      Henry A. Foster, for app’lt; Arlemus H Holmes, for resp’t,
   Parker, J.

The recovery which the defendant Alexander seeks to have reviewed was had upon a bond purporting to be executed by him as surety for Jacob P. Solomon, who had been appointed an insurance solicitor for the plaintiff. Upon this, the second, trial of the action, the plaintiff understood that the defendant claimed not to have signed the bond personally, and the evidence offered by it was for the purpose of establishing, not that Alexander affixed his signature to the bond, but that he, with full knowledge that a signature purporting to be his had been affixed, represented and acknowleged the signature to be his, and was therefore bound by it. Evidence to the contrary was adduced on behalf of the defendant, and thus was presented a question for the jury, which the trial court carefully and properly submitted to them, resulting in a verdict in favor of the plaintiff. The appellant now contends that the trial court erred in refusing to charge the jury that, “if the jury believe that the defendant did not personally execute' the bond he is entitled to a verdict,” because, as he alleges, that was the issue presented by the pleadings. This position is based upon too narrow a view of the complaint, and assumes that under it there could be no recovery without proving that the defendant personally wrote his signature upon the bond. But the complaint does not so allege. It chargés the execution and delivery of the bond by the defendant. And if the fact be as plaintiff attempted to prove, and the jury have found, that the defendant represented and duly acknowledge the signature on the bond to be his signature, there was an execution of the bond by him, although the signature may have been written by some one else. But there is a still further answer to the appellant’s contention. The plaintiff did not attempt to prove that Alexander wrote the signature personally, bnt that he represented it to be his, and the evidence tending in that direction was received without objection. Further than that, the defendant attempted to meet this issue. When the court came to submit the case to the jury, it properly presented to them the issue which the parties had tried, without a suggestion that it was not embraced in the pleadings. Then it was too late to present the point, for the first time, had defendant attempted it. But he did not attempt it. There was nothing in the request to apprise the court that the defendant’s contention was that under the pleadings there could be no recovery, in the absence of proof that Alexander personally affixed his signature to the bond It suggested to the court simply that it was the plaintiff’s view of the law that the defendant was not liable unless he wrote the signature. Under the facts before the court this was not a sound proposition, and its refusal to charge as requested was not error.

The appellant complains of the refusal of the court to charge that the jury should take into consideration the failnre of the plaintiff to call the subscribing witness Steinitz, and that no excuse has been given for not calling him. But this complaint is without force, because it appears that the plaintiff did subpoena him, and the court issued an attachment against him to compel his attendance. The court, therefore, properly said that no inference can be drawn against the plaintiff because of his absence, for the reason that the plaintiff is not responsible for his nonappearance at this time.

We have carefully considered the appellant’s argument intended to persuade us that the verdict is against the weight of evidence; but shall content ourselves with saying that we not only do not agree with him, but we cannot see how the jury could have reached a different conclusion.

The judgment should be affirmed, with costs.

All concur.  