" Practice Commentaries, McKinney's CPLR Rule 4536. The court in Ibaniz v. Pfeiffer, cited by the Plaintiff, does not base its decision to compare signatures on any legal requirement, but determined to do so according to its discretion and in light of the limited evidence brought before it. Ibaniz v. Pfeiffer, 350 N.Y.S.2d 964 (Civ.Ct. 1973). That case shows, consistent with CPLR 4536, that a court's own comparison of signatures in dispute may be one of several tools in assessing the genuineness of a signature.
In a promissory note case, relief under CPLR 5229 has been granted upon a finding of liability. See Ibanez v. Pfeiffer, 76 Misc.2d 363, 350 N.Y.S.2d 964, 966 (Civ.Ct.Queens Co. 1973). Nave's concern that the restraining order will leave him without means to live is unfounded. Relief under CPLR 5229 is provided "with the same effect as if a restraining notice had been stowed after judgment."
The trial judge, sitting as trier of fact, is entitled to make his own comparison of signatures and, without the assistance of expert testimony, form his own opinion as to their authenticity. See: Estate of McCarthy (1953), 265 Wis. 548, 61 N.W.2d 819; Brockton Credit Union v. Brockton Sav. Bank (Mass., 1972), 282 N.E.2d 687; Ibanez v. Pfieffer (1973), 350 N.Y.S.2d 964, 76 Misc.2d 363. By the Court.
In the instant case, after hearing the testimony before it, the court apparently found plaintiff's version of the facts to be more credible than defendant's version. CPLR 4536 authorizes the comparison of a disputed writing to be made "with any writing proved to the satisfaction of the court to be the handwriting of the person claimed to have made the disputed writing," and, in a bench trial, the court itself may make the comparison ( see Ibanez v Pfeiffer, 76 Misc 2d 363). Since defendant acknowledged that the signature on the retainer agreement was in fact his signature, the writing offered as a standard of comparison was conceded to be genuine ( see People v Molineux, 168 NY 264).
Pursuant to CPLR ยง 4536, this Court, as the sole trier of fact, may review the documents submitted to determine the genuineness of a signature on the note. See, Ibanez v. Pfeiffer, 76 Misc.2d 363, 350 N.Y.S.2d 964 (Civil Ct, Queens Co.1973) (court must rely on its ability to visually compare samples of defendant's signature contemporaneously made, and to observe conforming characteristics in order to determine whether defendant did sign the note). Based on the limited documents presented, this Court finds that the signatures on the renewals closely resemble defendant's signature on the original lease and declines to find that the renewals were forged.
Mr. DiBarro denied having changed the original order and provided, through his attorney, a handwriting exemplar of his "OK" initials. This court sitting without a jury may make a comparison between a disputed and authenticated writing (see, e.g., Ibanez v Pfeiffer, 76 Misc.2d 363 [Civ Ct, Queens County 1973]), even when the exemplar is contemporaneously provided by an adverse party on the witness stand. This singular exemplar of two printed letters, "O" and "K", without more, and in the absence of testimony from a handwriting expert, affords this court a scant basis upon which to make an appropriate ruling.
Were this all that were offered, defendants' contentions would indeed be amply supported. However, in addition thereto, two of the defendants, "Viola and Reilly, were identified as persons who admitted being the officers of 'Revo'" in a prior court proceeding not subject to the constitutional restrictions imposed by Miranda (Miranda v Arizona, 384 U.S. 436), and this court has scrupulously and meticulously examined handwriting specimens of the defendant (CPLR 4536; Ibanez v Pfeiffer, 76 Misc.2d 363), which lead it to believe, beyond a reasonable doubt and in the absence of any evidence to the contrary, that the defendants were indeed the proper corporate officers and in that capacity either knew or should have known of the nonpayment (People v Trapp, 20 N.Y.2d 613; People v Johnson Co., 71 Misc.2d 870). In the light of this opinion, this court finds each of these defendants guilty of the crime charged.