Bailey a. Lane. their right to a recovery is complete, and that there are no facts existing which can, by any possibility, sustain the defence. The motion is granted, with costs. From this decision, and the order entered thereon, the defendants appealed to the general term. S. T. Freeman, for the appellants. Crary & Elmore, for the respondents.-I. Separate answer of makers of note. 1. The answer of usury is sham. The plaintiffs' affidavits detail the circumstances of the transaction, and show that the subject of interest was not spoken of by the parties, and that if more than the exact interest was taken, it was done by mistake of all the parties concerned. The plaintiffs' affidavits, upon this point, are not denied. The excess of interest, admitting that the plaintiffs received the $61.44, is quite trifling, being only about one day's interest on the $5,000 loaned. 2. The second defence alleged is irrelevant. It is not merely a contradiction of the written contract between the parties, but so far as the time for the performance of the contract is concerned, it is the substitution of an independent agreement. Such a defence has been declared irrelevant by the Superior Court, all the judges concurring. (Fleury a. Roget, 5. Sandf., 646.) The authorities are numerous, also, to show that the agreement is void, being inconsistent with and contradictory of the written note or contract. Erwin a. Saunders (1 Cow., 249) analogous case to this; and the court, in that case, refer to a case in 3 Campb., 57, where Lord Ellenborough said: "The parol condition is quite inconsistent with the written instrument. The condition for a renewal entirely contradicts the instrument which the defendant has signed. There may, after a bill is drawn, be a binding promise for a valuable consideration to renew it when due. But if the promise is contemporaneous with the drawing of the bill, the law will not enforce it. This would be incorporating with a written contract an incongruous parol condition, which is contrary to first principles." The following cases also are in point, to show the irrelevancy of the defend ants' defence: Frost a. Everett (5 Cow., 497); Farmers & Man ufacturers' Bank a. Whinfield (24 Wend., 419); Payne a. La Bailey a. Lane. due (1.Hill, 116); Brown a. Hull (1 Den., 400); Busbank a. Beach (15 Barb., 326); Hunt a. Bloomer (5 Duer, 202); Van Allen a. Allen (1 Hilt., 524); Gridley a. Dale (4 Comst., 486). II. The separate answer of the indorser Robert Lane. 1. The first answer is a denial of any knowledge or information sufficient to form a belief as to the facts showing demand of pay. ment of the makers and notice of non-payment given to the indorser. This defence is sham. The plaintiffs produce the affidavits of the notary and the person making the service of the notice, showing due presentment and notice of non-payment. To this the indorser interposes no counter-affidavits or other proof whatever, and the answer must be held to be sham. Besides, the plaintiffs show a fact which the defendants admit, viz., that the defendants Lane and Guild (the makers), shortly before the maturity of the note in suit, made an assignment for the benefit of their creditors, giving preference to the defendant Robert Lane (the indorser), who accepted the trust, and has since been discharging his duty as assignee, and that the identical claim mentioned in the complaint is one of those directed to be paid by the assignment. These facts admitted, the authorities show that no demand of payment and notice of protest was necessary. (Mechanics' Bank a. Griswold, 7 Wend., 165; Seacord a. Miller, 3 Kern., 55; Bruce a. Lytle, 13 Bast., 163; also cases entered in 1 Abbotts' Dig., 461.) 2. The second defence of the indorser is the same as the second defence of the makers, and the same objection applies to it. (See supra.) 3. The objections that the notice does not specify which answer is sham, frivolous, or irrelevant, cannot prevail. (See People a. McCombe, 18 N. Y., 315.) out. BY THE COURT.*-The defence of usury was properly stricken The answer does not set up any usurious agreement intended as such, and the plaintiffs show by affidavit that the error was made by the clerk in calculating the interest, and was not intended as usury. The defendants in no way contradict the statement. As to the second defence, the agreement to receive the notes was made simultaneously with or before the making of the * Present, CLERKE, P. J., INGRAHAM and LEONARD, JJ. Robinson a. Smith. notes, and, not being in writing, was insufficient to vary the legal effect of the notes. The defence set up was therefore frivolous. The answer as to the want of protest was sufficient, and we think should stand. The order modified, so as to strike out all the answer of Lane and Guild, and all of Robert Lane except the first defence, without costs of this appeal. ROBINSON a. SMITH. Supreme Court, Seventh District; General Term, Sept., 1860. EXECUTION OF WILL.-DECREE OF SURROGATE UPON CONFLICTING EVIDENCE. It is a sufficient acknowledgment of a testator's signature to a will, if he states to the subscribing witnesses, before they sign their names, that it is his will, and if they, at the same time, see his signature thereto. The decree of a surrogate will not be reversed, merely because, there being a conflict of evidence between the subscribing witnesses and another person, as to what took place at the signing of the will, the surrogate relies upon the testimony of the latter. The surrogate has the best opportunities for judging of the degree of credit to which witnesses are entitled. Appeal from a decree of the surrogate of Seneca county, admitting two wills of William Smith, deceased, to probate. The facts are fully stated in the following opinion of the surrogate, delivered in February, 1859. S. G. HADLEY, Surrogate.—On the 16th day of July, 1858, Reuben S. Smith, the sole executor named in the instrument dated December 27, 1850, propounded for probate that instrument, and citations were duly issued and served, returnable on the 3d day of September following; at which time the parties appeared by their respective counsel, and Delia Smith, the widow of the testator, and C. Wardner, executor therein named, then propounded. Robinson a. Smith. for probate another instrument, dated February 19, 1851. The counsel for the respective parties entered into a stipulation in writing, signed by them, and now on file, that the proofs and examinations in relation to both said instruments be taken together and passed upon by the surrogate, with the like effect as though a petition for the proof of said last-mentioned instrument had been duly made, and a citation duly issued and served according to law; and that said last-mentioned instrument be either admitted to probate or probate thereof refused by said surrogate upon such proof, with like effect as though such petition had been duly made, and such citation issued and properly served on all the parties interested. Under this stipulation I ordered both applications consolidated, tried, and heard as one proceeding. As to the instrument dated December 27th, 1850, the only question presented is, whether the testator duly acknowledged to the attesting witnesses, at the time of their subscribing their names, that he had signed said instrument. Both the subscribing witnesses testify that the testator declared the instrument to be his last will and testament, and that they subscribed their respective names thereto, as attesting witnesses, at the testator's request, and in his presence and in presence of each other; that at the time the testator was more than twenty-one years of age, of sound mind and memory, and not acting under any restraint, and a citizen of the United States; that they did not see the testator subscribe his name to said instrument at the end thereof, and did not hear him say that he had done so. The witness, Cooper, on his direct examination, testifies unqualifiedly that the testator's name was to this instrument when he witnessed it, but on his cross-examination he does not recollect or know as he saw the testator's name to the paper when he signed it, but that his memory is not first-rate. He says that he (the testator) had this instrument in his hand and was sitting by the end of the table, and that he laid it down upon the table, saying, "Boys, I have sent for you to sign this;" this was after he had just declared the instrument to be his last will and testament; that he does not recollect as testator said any thing about having signed it, but is not positive and does not recollect definitely, it is so long ago; that when he went into the room the testator was sitting at the end of the table; that the pen and ink were on the Robinson a. Smith. table, but he did not see the testator have the pen in his hand; that this instrument lay on the table by the testator when witness went into the room; that the attestation clause was not read by or to the witness. The other subscribing witness does not recollect as the testator said any thing about having signed the instrument, and is pretty certain he did not in his presence; that testator asked him and Cooper to sign it as witnesses; that testator was about seventy-two or seventy-three years of age, of sound mind, memory, and not under any restraint; that he does not know as he saw any writing except Cooper's name, and thinks the paper was so folded that he could only see where they were to sign their names. On his cross-examination, this witness testifies that no part of the instrument was read to or by him; that he did not see the testator have the paper in his hand, or hear him say he had signed it, or hear him acknowledge that he had done so. It was admitted that the body of this instrument is in the handwriting of the executor named in it. Two other witnesses testify to their acquaintance with the testator and with his handwriting; that they have seen him write, and that his name to both instruments is in his own hand writing. Was there, then, any sufficient substantial acknowledgment by the testator to these subscribing witnesses, at the time they subscribed their names, that the testator had signed his name thereto? Certainly, the evidence does not show that he did so in terms. But did he in substance and in fact do so? Had he subscribed his name to it before the subscribing witnesses signed theirs? Did the testator and the witnesses know that it was a testamentary instrument? Was the testator's name visibly to it when he laid it on the table in the presence of these witnesses, having just at that moment declared it to be his last will and testament, and asked them to sign it as witnesses? From the whole evidence of the facts and circumstances disclosed, I am satisfied that the testator had then signed it, and that his name was visibly to it, and that the testator and the subscribing witnesses understood that it was a testamentary instrument, that no attempt was made at any concealment. There is no evidence of fraud, mental incapacity, or undue in fluence on the part of any one. From these facts so found, my conclusion of law is, that there was a substantial compliance with all the requirements of the |
