Turnure v. Breitung

Bills, notes and checks — evidence — action to recover on draft — defense of forgery — expert testimony — standards of comparison of handwriting may not be proved by opinion of expert but must be established by common-law evidence.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 11, 1921, reversing a judgment in favor of defendants entered upon a verdict and granting a new trial. The plaintiffs sued upon a draft which they claim was drawn upon the defendants, respondents, by one Mariano Herrera, payable to the order of himself ninety days after date, accepted by the defendants and indorsed and delivered by said Mariano Herrera to the plaintiffs, the holders thereof, before maturity for value. Respondents claimed that the signature “ E. N. Breitung ” on the draft, by which signature the draft purported to be accepted by them, was not written by the respondent Edward N. Breitung, but was forged by said Mariano Herrera. To prove the forgery claimed respondents relied upon the testimony of a handwriting expert, who based his opinion that the signature “ E. N. Breitung ” on the draft in suit was a forgery and was forged by Mariano Herrera upon a comparison of said signature with, among others, of specimen signatures “ E. N. Breitung ” testified to by Edward N. Breitung as not having been written by himself, and testified to by respondents’ expert as in his opinion after a comparison thereof with proven signatures of both Breitung and Herrera, to have been written by Herrera. The Appellate Division held that the evidence was incompetent since the standard could not properly be proved to be the handwriting of Herrera by opinion of an expert but should have been proved by common-law evidence.