Saratoga County Bank v. Leach

Learhed, P. J.: As a general rule at this day every person is a competent witness. In order to give a proper construction to the exception contained in section 829, we must understand the reason. That plainly is the unfairness of permitting one person to testify to a personal transaction or communication with another, when the mouth of the latter is closed by death, so that he cannot give his version of the transaction or communication. [338] Now applying that reason to the present case we see that for a person to testify in regard to a name at the bottom of a note, “ that is not my signature,” has no element of unfairness. The genuineness of a signature is a matter which may be shown by evidence not in the least connected with any personal transaction between the alleged maker and the payee. It is not a transaction personal between maker and payee. "When there is an attempt to prove a verbal contract or a conversation between a witness and a deceased party, the only possible evidence may be that of the two persons. But the genuinensss of a signature is shown by comparison and by the testimony of those familiar with handwriting. Indeed to a great extent the testimony of the person whose the signature is claimed to be, is based only on familiarity with his own signature, and is, therefore, of the same character with that of other witnesses to handwriting. There is another difficulty. The plaintiff insists that because he has given prima faoie evidence of the genuineness of the signature, the defendant cannot testify in his own behalf to the contrary. Suppose then that the defendant by other evidence had overwhelmed this prima facie evidence, could the plaintiff still insist that the testimony which the defendant offered to give by himself as a witness was “ concerning a personal transaction.” According to the supposition, the “ personal transaction ” would have been practically disproved by competent evidence. It will be found, very generally if not always, that the point whether or not the testimony is concerning a personal transaction appears by the testimony itself which is offered, and is not dependent upon some other matter which is in dispute. The plaintiff urges that as he had proved prima facie the signature, the law presumed from that fact the delivery, and that the delivery must have been a personal transaction, and hence the defendant cannot himself testify that the signature is not his because that testimony inferentially denies the delivery, which must be a personal transaction. It is not quite accurate to say that the genuineness of the signature is the presumptive evidence of delivery. Rather it is the plaintiff’s possession, which is presumptive evidence of delivery. Proof of the genuineness of the signature of a note which is in the maker’s possession, affords not the least presumption [339] that the note has been delivered. The possession by the maker ■affords a presumption to the contrary. On the other hand, the possession by the payee, or one claiming under him, does afford a presumption of delivery. Therefore the argument fails that for the alleged maker to testify that the signature is not his, is to give ■evidence touching the fact of delivery, and hence of a personal transaction with the payee. The personal transaction, if any, must have been the delivery of the note (by whomever signed) to the deceased by or for the defendant. On this point the defendant was not questioned. In illustration of these views we refer to Pinney v. Orth (88 N. Y., 447, at 451) ; Lewis v. Merritt (98 id., 206). .Judgment reversed, with costs of all courts. LaNdoN, J., concurred.