On appeal from the Supreme Court.
For the plaintiff-respondent, Jacob Friedland (Morris G. Fredman, of counsel).
For the defendant-appellant, Dante Rivetti.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal by the defendant below against whom judgment was entered in the Supreme Court Circuit of Hudson county.
The plaintiff was the payee of a note which, when delivered, was dated May 1st, 1933. The obligation was a renewal of a prior note for $1,250 on which $250 and interest had been paid. From the testimony of the plaintiff, it appears that the note should have been dated April 1st, instead of May 1st. The plaintiff, on discovering the discrepancy in date, called
to see the maker of the note and told him of the inaccurate date and asked for a new note. He replied that a new note was unnecessary and instructed her to change the date, which she accordingly did by striking out the word "May" and substituting "April."
The only pertinent defense is that the plaintiff, after the execution and delivery of the note, and without the consent or authority of the defendant, materially altered the note by changing its date.
The single point upon which the judgment is attacked is that the learned trial judge instructed the jury that "the defendant must prove to your satisfaction by the greater weight of the evidence that subsequent to the execution of the note by him * * * that the note was changed in a material respect without his consent or authorization." This instruction to the jury is challenged as error.
Section 124 of our Negotiable Instruments law (3 Comp. Stat., pp. 3732, 3749) provides, "where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized or assented to the alteration and subsequent endorsers."
Any alteration that changes the date of a negotiable instrument is a material alteration. (Section 125, supra).
The alteration was apparent on its face and where there is such apparent alteration, the party claiming under the instrument has the burden of explaining it. Matter of Pinkerton (1906), 99 N.Y.S. 492; Eisner v. Crommette, 151 ...