Argued October 7, 1980
Decided November 20, 1980
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, LEE TOWNE ADAMS, J.
John L. Goodell for appellant.
Ronald J. Gibb for respondent.
The order of the Appellate Division should be affirmed, with costs.
Especially since here the maker and the payee were already deceased at the time of the trial (see Schechter v Klanfer, 28 N.Y.2d 228), on the record made here whether the notes were signed by Conrad Olson, whether he received consideration for their execution and delivery, and whether they had been paid were questions of fact.
So too was it for the Judge at nisi prius, as the trier of the facts in this nonjury case, to decide what weight, if any, was to be accorded to the opinion expressed by plaintiff's handwriting expert (see, generally, Matter of Sylvestri, 44 N.Y.2d 260, 266; Richardson, Evidence, § 367). Although he received it in evidence, he was not bound to credit it. In deciding whether to do so or not, it would be unrealistic to expect that, as a fact finder, he would not be influenced in the exercise of his judgment by the general experience and education that in the course of his life had shaped him as a person. In the case of a Trial Judge that will almost always have included impressions that he had garnered in the course of presiding over trials. It goes without saying that does not mean that personal knowledge of a probative fact under consideration may be used to decide a case. But the reference by the trial court to expert opinions to which the Judge had been exposed in the past need not be taken as more than a candid unveiling of some of the inner thoughts that, perhaps unavoidably, ran through his mind as he pondered the factual questions he had to determine. It does not compel the conclusion that it was a declaration that he was applying an erroneous legal standard. This view is reinforced by the very language in which, in weighing the handwriting evidence, in the end he goes no further than to talk of "difficulty" on this score and then proceeds with an analysis based on the assumption that the handwriting testimony had sufficed to make out a prima facie case. (See, generally, 9 Wigmore, Evidence [3d ed], § 2570.)
In any event, the Trial Judge's factual determinations having successfully survived scrutiny by the Appellate Division, empowered as that court is to pass on the facts as well as the law, they now are beyond our review (CPLR 5501, subd [b]).
Though CPLR 4536 expressly provides the "Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the handwriting of the person claimed to have made the disputed writing shall be permitted" (italics supplied), the Trial Judge rejected the testimony of plaintiff's expert because he had tried other cases in which the experts had testified that signatures cannot be compared and that only a handwriting sample containing a sufficient number of words and letters in normal script can be used for comparison. In doing so he did not make a factual determination that the signature exemplar was not Conrad Olson's handwriting or that plaintiff's expert's opinion should not be credited for a reason going to its weight, rather than to the kind of exemplar used. Indeed, his statement that "It is difficult to find herein proof of a prima facie case," on which the majority relies, shows that he rejected the expert's testimony not on credibility but on an incorrect legal standard. This was egregious error of law for it not only flouted the statutory direction, but also deprived plaintiff of any possibility of cross-examining the experts from other cases on whose testimony the Judge relied.
Proof of Conrad Olson's signature went to both execution of the notes sued on and Olson's receipt of consideration for them since the expert testified that not only Olson's signature on the notes but also his indorsement on two checks for $5,000 each drawn by Frank Felt to Olson's order were genuine. No defense of payment was interposed by the estate and no finding with respect to payment was made by either court below. Nor was delivery an issue, the notes having been in Frank Felt's possession at the time of Conrad Olson's death and he having caused this action to be instituted on the notes. Plaintiff executrix would, therefore, be entitled to judgment on the notes if the expert's testimony were accepted by the trier of fact. It having been rejected on erroneous legal grounds, rather than on a factual basis, there should be a reversal and a new trial.
Chief Judge COOKE and Judges GABRIELLI, JONES, WACHTLER and FUCHSBERG concur in memorandum; Judge MEYER dissents and votes to reverse in an opinion in which Judge JASEN concurs.