From Casetext: Smarter Legal Research

Schwarz v. Oppold

Court of Appeals of the State of New York
Sep 17, 1878
74 N.Y. 307 (N.Y. 1878)


Argued May 30, 1878

Decided September 17, 1878

Samuel Hand, for appellants.

Peter Cook, for respondents.

The question whether the verdict was against the weight of the evidence cannot be considered on this appeal. The General Term, having reversed the order at Special Term granting a new trial, must have been of opinion that the verdict was not against the weight of the evidence. That question the General Term had power to decide, and its determination thereon is final. The only points before us are those which arise on the exceptions taken at the trial.

The exception mainly relied upon was to the admission of the evidence of the defendant Wilhelm Oppold to the effect that the words "with interest" which appear at the end of the note given in evidence were not there when he signed it. The objection taken was that no such defense was pleaded.

The complaint set forth a note payable on demand with interest. The answer of the maker, Wilhelm Oppold contained a general denial. The note put in evidence purported to be payable with interest as alleged in the complaint. It was clearly competent for the defendant under his general denial to controvert this proof by showing that the note had been altered since its execution by adding the words "with interest." This alteration, which was established by the finding of the jury, clearly destroyed the effect of the note as evidence, and precluded any recovery thereon in the absence of sufficient explanation of the alteration.

The defendants also gave evidence to the effect that the special indorsement by which the defendant Louisa Oppold charged her separate estate, had been added after she had signed. A general objection was taken to the question put to her whether the writing above her signature was there when she signed. The question was material, and admissible as against a general objection. If it was intended to raise any question as to its admissibility under her answer, the objection should have been specifically taken, and in that case it could have been obviated by amendment. No such objection was interposed. The only question raised with respect to the answer of the defendant Louisa Oppold was that it had not been properly verified. That objection was not a proper one to be raised at the trial.

The questions of fact whether the note and indorsement had been altered after the defendants had affixed their respective signatures, were submitted to the jury on conflicting evidence, and they found for the defendants. The General Term of the Marine Court having approved the verdict we cannot interfere with it, and there being no valid exception in the case the judgment must be affirmed.

All concur, except MILLER and EARL, JJ., absent.

Judgment affirmed.

Summaries of

Schwarz v. Oppold

Court of Appeals of the State of New York
Sep 17, 1878
74 N.Y. 307 (N.Y. 1878)
Case details for

Schwarz v. Oppold

Case Details

Full title:ANTON SCHWARZ et al., Appellants, v . WILHELM OPPOLD et al., Respondents

Court:Court of Appeals of the State of New York

Date published: Sep 17, 1878


74 N.Y. 307 (N.Y. 1878)

Citing Cases

Starasvetsky v. Feldman

The affidavit of the defendant, if believed, shows a defense of alteration of the note after its signature by…

Rister v. City Univ of N.Y

Failure to act promptly is a waiver of the defect. ( Schwarz v. Oppold, 74 N. Y. 307 [1878]; Paddock v.…