Heard v. Tappan & Merritt

Fish, P. J. 1. Upon the trial of an action on a promissory note it appeared that after the instrument, which included the note and also a conveyance of property to secure the payment of the same, had been signed by the defendant as surety and by another as principal, the latter, who owned the property so conveyed, procured, without the consent of the surety or the payee, the signatures of two persons, one of whom was a justice of the peace, to the instrument as attesting witnesses, the attestation not 'being limited to the signature of the principal. Held, that it was not erroneous, as against the surety at least, to instruct the jury that affixing the names of the witnesses to the instrument was not such a material alteration thereof as would affect the surety’s liability thereon, unless it should appear that the same-was procured by the payee, or done with his assent or knowledge, for the purpose of defrauding the surety. 2. A charge touching a matter wholly irrelevant under the pleadings, eyen if erroneous, is not cause for a new trial, when it appears that the jury could not have been misled by such instruction to the injury of the complaining party. S. A ground of a motion for a new trial complaining of the admission of documentary evidence will not be considered, unless the evidence objected to is set forth, either literally or in substance, in the motion itself, or attached thereto as an exhibit. 4. The verdict was not without evidence to support it. Judgment affirmed. All the Justices concur.