Friedman v. Cohen

The pleadings were verified in this case. The plaintiff sued upon a promissory note claimed to have been made by: *68the defendant Cohen, payable to himself and indorsed by the defendant Laubentracht, and transferred to plaintiff for value. The appellant denies that the indorsement was-made by him.

A default was taken-against the defendants on February 15, 1911; the attorney for defendant Laubentracht having moved for an adjournment of the trial upon the ground of the illness of his client. Subsequently he moved upon an affidavit setting forth substantially, the same reasons for opening the default as he urged upon his motion for an adjournment, and also containing the positive statement, sworn to by the defendant Laubentracht, that his name indorsed upon the note in suit is a forgery, and was placed there without his knowledge or authority. An affidavit of merits was also filed.

The only testimony given upon the inquest as to the indorsement upon the note of the defendant Laubentracht is as follows:

“Q. I show you this note. Did the defendant indorse that note? A. Tes; this is his' indorsement.”

This evidence is insufficient to charge the defendant Laubentracht with having indorsed the note. Proof of the defendant’s handwriting, or other evidence tending to show that he indorsed the note, should have been given.

Order reversed, and judgment vacated, and a new trial ordered, with costs to appellant to abide the event.