Opinion
May Term, 1903.
Leon Kronfeld and I. Henry Harris, for the appellant.
Elbridge L. Adams, for the respondent.
This action was brought by plaintiff as the holder for value and before maturity to recover the amount of a promissory note for the purported sum of $2,200, made by the defendant Leighton and indorsed by the defendant Seelig and one Murray.
The defense which the defendant Seelig sought to establish upon the trial was that he indorsed a note for $200 made by the defendant Leighton, and that the note sued upon was manufactured by raising said note to a purported one for $2,200; that this was done by the defendant Leighton and before it came into plaintiff's possession.
The only question which we deem it necessary to consider is raised by the exclusion by the learned trial court of evidence, offered in behalf of appellant, of certain alleged statements made by the defendant Leighton at about the time plaintiff's note is said to have been made. We think that said exclusion was such error as calls for the reversal of the judgment appealed from and for a new trial.
The note in question bears date May 17, 1902. The appellant Seelig claimed and gave evidence tending to show that upon that day he in reality indorsed a note for the benefit of Leighton for the sum of $200, and that two days later Leighton brought said $200 note back to him and asked him to indorse a larger one for the sum of $2,500. This evidence was permitted without objection by plaintiff, and tended to establish the defense that the note given upon May seventeenth was for $200 and not for $2,200, as is now claimed in behalf of plaintiff.
Subsequently said appellant called a witness named Hayes, who testified that he was at appellant's stable on May nineteenth, and then, upon his examination, the following took place: "Q. Did you hear a conversation between Leighton and Seelig on the 19th of May, 1902? [Objected to. Sustained. Exception.] Q. Did you see that note for $200, which Seelig had endorsed on the 17th, in the hands of Leighton on the 19th of May, 1902? A. I can't say I did. He had some papers in his hand. Q. Was anything said in reference to that note? [Objected to as immaterial. Sustained. Exception.] Mr. Kronfeld: I desire to prove that Leighton at that time asked Seelig to endorse a note for $2,200, and that he would then give him back the $200 note. Q. Did Leighton ask Seelig to endorse a note for him for $2,200, and if he gave him that note he would give him back the note for $200, which he had endorsed for him on Saturday? [Objected to as immaterial. Sustained. Exception.]"
Counsel for appellant argues, in the first instance, that these alleged declarations of Leighton tending to show that Seelig indorsed a note for $200 and not for $2,200 would have been competent original evidence to establish his defense in this action. We disagree, however, with this contention. We think that the declarations of a maker of a note, not any part of the res gestæ, would be entirely incompetent to destroy the claim and rights of a subsequent purchaser and holder for value, and without notice or dishonor of a promissory note, and that while the objection was made upon the ground of immateriality, the ruling might be sustained so far as this purpose is concerned because of the general incompetency of the proffered evidence. ( Paige v. Cagwin, 7 Hill, 361; Clews v. Kehr, 90 N.Y. 633.)
In addition, however, it is urged that this evidence was competent for another reason. The defendant Leighton was a witness for plaintiff, and had given evidence in its behalf tending to contradict the defense discussed, that the note indorsed for him by appellant was for the sum of $200 instead of $2,200. The evidence offered and excluded tended to contradict this evidence, and in its nature was competent for that purpose. It may be urged, however, that appellant's counsel had laid no proper foundation for the introduction of the excluded evidence upon his examination of Leighton. The answer to this is that no such objection was urged to its introduction. While appellant's counsel in offering the evidence may especially have had in mind his theory that it was competent as original testimony, the record still shows that he offered it generally, and not for any restricted purpose. Such general offer imposed upon plaintiff's counsel the duty of making appropriate objections, and if the objection had been interposed that the proper ground for the introduction of the evidence had not been laid for the purpose of impeaching Leighton, it would have been possible to cure such objection. We believe, therefore, that its exclusion under all of the circumstances as disclosed by the record was error, for which a new trial must be granted. ( Clews v. Kehr, supra.)
All concurred; ADAMS, P.J., not sitting.
Judgment and order reversed and new trial granted, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.