Eisner v. Crommette , 151 N.Y.S. 3 ( 1915 )

PAGE, J.

[1] This action was brought on a promissory note which bears on its face evidence of having been altered. The burden of explaining these alterations rested on the plaintiff, and the note should not have been received in evidence until such explanation was given.

[2] The plaintiff did not on" his direct case attempt to give any explanation. The court interrupted the cross-examination of the payee, who had filled out the body of the note, and inquired concerning the apparent change of the amount of the note from “seven” to “seventy-five.” His explanation was that when he had written the word “seven” the ink gave out, and he dipped his pen in an inkwell. The remaining part of the note, “at 549 W. 159 St. in payment for,” appears, however, to be written with the same pen and ink as the portion preceding the “ty-five.” The figure “5,” “ty-five,” “and plumbing” all appear to have been written with a different pen and ink from the other written portion of the note. The explanation as to the erasure of- the words “legal services” and the writing of the words “Repairs Boiler” is also inadequate. The payee stated that the maker of the note, when he handed the note to her for signature, wrote the words “legal services,” that he removed them with ink eradicator, and wrote over the words “Repairs Boiler”; and yet the words “in payment for,” which immediately precede the alteration, are concededly in his handwriting.

In the interest of justice, the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.