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Venuto v. Lizzo

Supreme Court of New York, Appellate Division

December 29, 1911

JOSEPH VENUTO, Respondent,
FILOMENA LIZZO, as Administratrix with the Will Annexed, etc., of ANTONIO LIZZO, Deceased, Appellant.

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APPEAL by the defendant, Filomena Lizzo, as administratrix with the will annexed, etc., from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 19th day of May, 1911, denying the defendant's motion to set aside the verdict of a jury in favor of the plaintiff and for a new trial.


Joseph W. Middlebrook, for the appellant.

Charles L. Hoffman, for the respondent.


The action is brought upon two promissory notes, purporting to have been made by the defendant's testator, Antonio Lizzo, one for $1,000, dated October 4, 1907, payable to the order of the plaintiff six months from date at the Mechanics and Traders' Bank, and the other for $3,000, dated at Somma, Naples, February 6, 1908, payable to the order of the plaintiff six months from date at the Mechanics and Traders' Bank. The plaintiff produced the notes upon the trial and called a witness, who had been paying teller of the Mechanics and Traders' Bank, where the said Lizzo had had an account for several years. The witness testified that he knew Lizzo; that, in his position as paying teller, he had frequently had occasion to pass upon the latter's signature on checks, and that the signatures to the notes in question were in his handwriting. The defendant then undertook to prove that the signatures were forgeries. When the defendant rested the plaintiff was called as a witness, and was permitted without objection to testify to the circumstances under which the notes were given. In brief, his story was that when he was fourteen years old, which was in the year 1902, Lizzo took him as an apprentice to teach him the trade of a stone mason; that he became a regular mason when he was sixteen years of age and worked for Lizzo in that capacity for one year; that he then became Lizzo's foreman and worked in that capacity until the fall of 1907; that during that time Lizzo had paid him no regular wages, but had given him small sums each week for pocket money and other larger sums at intervals for his personal expenses. He testified that, at the outset of his employment, Lizzo promised to take care

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of him and to leave him his, Lizzo's, fortune; that later Lizzo proposed to take him into partnership when he became twenty-one, and also told him that he would save up his salary and pay it over to him when he was twenty-one; that Lizzo went to Italy on October 6, 1907, and, before going, promised the plaintiff that, upon returning, he would give him what was due him; that in December he received a letter from Lizzo requesting him to come to Italy; that he complied with that request and arrived at Naples on the 30th of January, 1908, where he found Lizzo ill and in the care of his two sisters, one of whom is the defendant; that on February 6, 1908, he, the plaintiff, at Lizzo's request, filled out the two notes and Lizzo signed and delivered them to him in the presence of the two sisters. The notes are written on the blank forms of the Mechanics and Traders' Bank. The plaintiff testified that Lizzo took the blanks from his jacket, lying 'alongside the bed,' and requested him to fill them out; that the reason for dating one note back to October fourth, two days before Lizzo left this country for Italy, was that word had been received that the Mechanics and Traders' Bank had closed its doors and that Lizzo thought it might be open by the time the plaintiff returned, and so the note was dated back in order that it might mature by that time. The defendant denied that any such transaction occurred in her presence.

This case does not fall within the line of cases relied upon by the appellant in which claims have been asserted upon alleged oral contracts with decedents. There were, however, many circumstances tending to cast suspicion upon the plaintiff's case. We do not think it profitable to discuss them at this time.

The important question was whether the signatures to the notes were genuine. Aside from her own testimony, the defendant had to rely mainly on that of expert witnesses. Two experts were called, who stated that in their opinion the signatures were forgeries, but, throughout their examination, they were constantly interrupted by objections, which were usually sustained, and by motions to strike out, which were usually granted, with the result that they were unable to give connected reasons for their opinion, and that the jury must have

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been unable to tell at the close of their testimony what had been stricken out and what left in. It would unduly extend this opinion and serve no useful purpose to point out each of the interruptions referred to. It is sufficient to say that many of the objections were trivial and pointless except as they served to break up the witness and prevent a connected statement of his reasons. Reference to one or two will suffice. The disputed signatures bear a remarkable similarity to each other and to at least one of the admittedly genuine signatures. The witness Lewis was not allowed to state, in answer to a direct question, whether in his opinion the signatures were tracings. He had previously in describing the characteristics of the disputed writings, endeavored to describe characteristics similar to 'such as appear in traced writing,' but the court had stricken out his answer on the ground that it was 'incompetent, irresponsive and improper.' That witness, at the close of his evidence asked the court to give him permission to state on what he based his conclusions, saying that, because of the interruptions he had been unable to do so, but the request was denied.

While the testimony of expert witnesses is carefully weighed and accepted with caution, the law allows such evidence. The conclusion of a handwriting expert as to the genuineness of a signature, standing alone, would be of little or no value, but supported by sufficiently cogent reasons his testimony might amount almost to a demonstration. While the court in this case did not directly refuse to allow the experts to state their reasons, as was done in the case of Johnson Service Co. v. Maclernon (142 A.D. 677), the effect of allowing constant trivial objections and of the erroneous rulings was virtually equivalent to such a denial.

The court charged the jury that the burden was on the defendant 'to establish that the notes were forged by evidence which must fairly outweigh all the other evidence in the case, * * * and if this has not been done, then the defendant cannot recover, and your verdict must be the other way.' In response to an exception the court said: 'I meant by that that the burden of proof is upon the defendant, and the defendant must ...

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