Howard v. Bank of the Metropolis

Hatch, J.: The crucial question in this case has resolved itself into an inquiry as to whether, when the plaintiff delivered the note to the bank, he delivered with it the card upon which he had written the address of the indorser upon the note. If he did, then it is quite evident that the jury would be authorized to find that the bank was negligent in failing properly to charge the indorser with liability for the [536] payment- of the note. The delivery of the card, if made at all, was to Laffey, the defendant’s collection clerk, as it is. undisputed that he is the person who received the note from the plaintiff.. He testified that he received (he note, and nothing else ; that no card was delivered to him by the. plaintiff at that time, and that lie never saw it until the action of Howard v. Van Gieson was tried. He also testified that the note, passed from his hands to the note teller, and.that he never saw it again until it was brought to his window by the plaintiff, when, the claim was made that-it had been improperly protested. This was some time after the note had matured and the mistaken protest had been made. The plaintiff testified that when the note was delivered to him after maturity, there was indorsed upon the back in pencil the address- of the indorser as given upon the card, and that such pencil indorsement was not in his (plaintiff’s) handwriting. This indorsement had the same abbre-. viations as and was closely similar to the address contained upon the card. The plaintiff also testified that he applied to Laffey for the card after' the delivery to him of the note.; that Laffey produced it from a drawer and delivered it to the.plaintiff. This,-Laffey denied, and" testified that there was no conversation between himself and the plaintiff respecting-the indorser or his address, and that he had no information upon the subject until after the maturity of the note. The conflict of evidence betwéen these witnesses was- sharp, and the credibility of their statements was material and vital upon the issue involved. Under these circumstances, each party was entitled to every scrap of testimony which bore upon tlie issue or affected the credibility of the statements of either. At the close of the defendant’s case the plaintiff called Carvalho., an expert witness in handwriting, for the purpose of showing that the indorsement on the note of the indorser’s residence was in the 'han.dwriting"'of Laffey. . Objection was made to this testimony, • based upon the ground that it was not in rebuttal of the defendant’s case. The court so held and excluded the testimony; to which ati exception was taken. As to who in fact wrote this indorsement became a material issue. The defendant, upon the cross-examination of the plaintiff, had interrogated him concerning it and claimed that it’ was in- the hand [537] writing of the plaintiff, and that it was placed there after the maturity of the note and after the same had been delivered to him by the bank. This was done for the purpose of discrediting his testimony by showing that it differed from the statement made by him upon a previous trial, and also that it was not done by any one connected with the bank. The plaintiff sought to introduce the evidence of Carvalho for the purpose, among other things, of contradicting the testimony of Laffey that he knew nothing concerning the indorsement upon the card, and also contradicting his testimony that he had not seen the note after it passed from his hands to the note teller of the bank. There can be no question but that testimony showing that Laffey wrote-the indorsement upon the note before its delivery to the. plaintiff was competent and material. It bore directly upon the issue as to whether he had the card in his possession, as claimed by the. plaintiff, or had received information from him as to the address of the indorser. The writing upon the card being in abbreviated form, and the indorsement, upon the note following closely that of the card and exactly so. as to the abbreviations, had such indorsement been shown to be in the handwriting of Laffey, it would have authorized the inference that at the time when he made the indorsement upon the note he either had before him the card which contained it or was possessed' of information concerning it. He could only have become, according to his testimony, possessed of such information either by the possession of the card or by information given to him by the plaintiff at the time of the delivery of the noté to the bank for collection. It is said, however, that the plaintiff was bound to make proof of such facts as a part of his affirmative case, and that, having failed so to do, it was not available by way of rebuttal. If this claim be true, there was no error in the ruling, as it would be discretionary with the court to permit the evidence or deny it, and no error could be predicated of the ruling even though the testimony was inherently competent and material. But where the evidence offered tends directly to weaken, contradict or impeach the statement of a witness upon a material question, it is competent by way of rebuttal, and it is error to exclude it. (Bancroft v. Sheehan, 21 Hun, 551; Odell v. McGrath, 21 App. Div. 252; Rap. Wit. §§196, 255.) [538] The evidence offered was strictly iti rebuttal of the -statements of Láffey. It,contradicted his statement that he had not been in -possession of the note after its delivery to the note teller, as it was com Ceded that the indorsement was not upon- the note when it left the hands of the notary.after protest, and if placed thereon by Laffey it could only have been só placed between the time of such delivery and its delivery to the plaintiff. The latter, as a part of his affirmative cáse, was not required to show that Laffey had admitted liavin'g possession of the card or of information concerning the residence of x the indorser, The evidence offered was in the nature of an admission upon the part of Laffey .that from some source he had information concerning the residence of the indorser prior to the time of the maturity of the note, as his indorsement upon it disclosed the • possession of'such.information, and he acquired no-information save from .the plaintiff- , Consequently, its" tendency and the inference to ■ be drawn from 'such facts directly contradicted his statement that ■ lie had no knowledge upon the subject. This testimony therefore, was not only competent and material but also competent in rebuttal . -of the defendant’s case, for which reason the ruling was error. ' The judgment and order should, therefore, be reversed and a new trial granted, -with costs to the appellant to abide the event Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred ; > O’Brien, J., dissented.