Boomer v. Koon

E. D. Smith, J.: The complaint alleges, in the usual form, the making and delivery of the promissory, note upon which the action is brought, and describes it according to its terms. [646] Tbe answer denies that at the time in said complaint mentioned, or at any other time, the defendant made the note in the said complaint mentioned, and also denies that he delivered the note in said coinplaint mentioned as alleged in said complaint. At the trial, the plaintiff produced the note described in the said complaint, and proved the defendant’s signature thereto. The defendant then offered to prove that the said note had, after its execution and delivery, been altered by adding the words with interest thereto, which offer was overruled and the evidence excluded, irpou the ground that it was not admissible under the general denial of the answer. An exception to this decision presents the only question for our decision. It is true that under the Code there is strictly no general issue, but a general denial of each and every allegation of a complaint, or a specific denial of any particular allegation therein, necessarily puts every such allegation in issue. Every fact thus put in issue, must be proved by the party affirming such fact. The making, execution and delivery of the note described in the plaintiff’s complaint, he was, under the denial in the answer, bound to prove. Proof of the defendant’s signature to such note was, doubtless, prima faeie evidence of such facts; but prima facie evidence is never conclusive. It may always be repelled by proof directed and adapted to show the actual facts. Under a general or special denial a defendant must be permitted to disprove the essential facts, relied on to establish the cause of action. The defendant denies in fact and effect, that he ever made the promissory note described in the complaint. The proof that the note produced on the trial had been altered in a material part, was clearly proof that it was not his note; that he did not make and deliver such note. It overcame and repelled the prima facie evidence afforded by proof of his signature, and destroyed the cause of action. Such proof was admissible at common law under a plea of non est factum in an action of debt or covenant. (1 Chitty Pleadings, 482, 483.) There is no distinction in principle between the denial under a' plea of non est factum, that the deed set up was the defendant’s deed, and a denial in an answer under the Code, that a promissory note declared on is not his note, and was not, in the form and effect set up in the complaint, made and executed by him. This is asserted [647] in principle in Schermerhorn v. Van Allen (18 Barb., 29); Andrews v. Bond (16 id., 633); Beaty v. Swarthout (32 id., 293); Van Santvoord’s Pleadings (3rd ed.), 565. It was not new matter, such as is required to be set up in an answer in avoidance or discharge of an admitted cause of action, within the cases of McKyring v. Bull (16 N. Y., 297), and Quin v. Lloyd (41 id., 349). It, doubtless, would be very proper, and, perhaps, the better practice where the defense in an action upon a promissory note or other written instrument is, that the same had been fraudulently altered after its execution, to set up such defense in the answer to avoid surprise at the trial. But the question raised on this appeal is, whether the defendant shall be precluded from such defense because he has omitted to set it up in his answer. We think the law is otherwise, and that the order 'denying a new trial should be reversed, and a new trial granted, with costs to abide the event. Morgan, J., concurs.