Note on Proof by Expert. NOTES OF CASES ON EXPERT TESTIMONY TO ESTABLISH GENUINENESS. Kentucky: Fee v. Taylor, 83 Ky., 259 (experts not acquainted with the handwriting of the person whose signature is disputed cannot testify by comparison of handwritings that the contested paper is not genuine, unless the disputed paper is ancient or the standard of comparison is in evidence or its genuineness is admitted). Illinois: Rogers v. Tyley, 1892, 32 Northeast. Rep., 393 (where other writings admitted to be genuine are already in the case, whether such writings and the disputed writing were written by the same person is a proper subject for expert evidence). New York: Hadcock v. O'Rourke, 6 N. Y. Supp., 549; s. c. 25 State Rep., 55 (there is no rule which confines the testimony of an expert as to handwriting who has no knowledge of the handwiting of the person whose writing is disputed to statements as to the characteristic of the several writings submitted to him for comparison, their resemblance and dissimilarity and which does not allow him to state whether the disputed signature is genuine or not). People v. Severance, 67 Hun, 182; s. c. 51 State Rep., 399; 22 N. Y. Supp., 91 (an expert should not be permitted to testify positively that the disputed writing and the instrument used as the standard of comparison were written by the same person; his testimony should be confined to a comparison of the handwritings, and the expression of his opinion as to whether or not the writings were by the same person). Ohio: Bell v. Brewster, 44 Ohio St., 696; s. c. 10 Northeast. Rep., 679 (comparison of writings may be made not only by witnesses who have knowledge of the handwriting of the person who purports to have written the disputed document, but also by persons who are skilled in handwritings generally called experts). Pennsylvania: Rockey's Estate, 155 Pa. St., 453; s. c. 26 Atlantic Rep., 656 (a mere expert cannot give his opinion as to comparison of signatures; such comparison is for the court or jury). Utah: Tucker v. Kellogg, 8 Utah, 11; s. c. 28 Pacific Rep., 870 (an expert may testify as to his opinion formed by comparison of signatures admitted to be genuine with the signature in question, irrespective of the fact whether genuine signatures are already in evidence for other purposes). Virginia: Hannot v. Sherwood, 82 Va., 1 (a skilled expert may testify from comparison as to the handwriting of another). Hynes v. McDermott, 82 N. Y., 41. HYNES v. MCDERMOTT. New York Court of Appeals, 1880. [Reported in 82 N. Y., 41.] An expert cannot testify as to the genuineness of a disputed signature, from comparing with it merely photographic copies of genuine signatures; but the originals to be compared should be before him when he testifies. A hired agent employed to get evidence in the cause who has formed an opinion as to the genuineness of a disputed signature, by comparison with specimens selected for the purpose by him or the party employing him, cannot, though an expert, testify to such opinion. Action of ejectment by the alleged widow and sons of William R. Hynes, deceased. Upon the trial, William J. Loader, a detective, was called by defendants to prove that a lease to one Elizabeth Saunders was signed by plaintiff in that name, after her alleged marriage to Hynes. The witness testified he had been employed by the defendants in connection with the case, and that he had been present at the taking of a deposition in England, where certain signatures had been produced. He was then asked by defendant's counsel: "Q. Was Mrs. Hynes [plaintiff] present at the time of the examination? A. She was. Q. Do you know whether she looked at the signatures or not? A. She did. Q. What did she say as to who wrote the name in the signature book? A. When the signature of Elizabeth Hynes was produced, the bank manager said that he had written "Victoria Villa" himself; and she said, "Yes, I wrote Elizabeth Hynes." And we turned back then to the signature of Elizabeth Saunders, and the manager said, "The lady present wrote the whole of that; I did not write any of it," and she said, "I did." Q. You saw the two signatures? A. I did. Q. Elizabeth Hynes and Elizabeth Saunders, in the signature book to which you have referred? A. I did. Q. Were there copies taken of those signatures? A. There was. Hynes v. McDermott, 82 N. Y., 41. Q. These are the copies that are annexed to the testimony of Mr. Brewer of the bank? A. Yes; they are annexed to the testimony of Mr. Brewer. Q. Did you make an examination of the two signatures which Mrs. Hynes on that occasion stated she wrote? A. I did. The witness then stated he had had experience in the examination of handwritings, and was further asked: Q. Now state, from your knowledge of the handwriting of the plaintiff, Mrs. Hynes, acquired in the manner you have stated, in whose handwriting the signatures to the paper marked No. 1 for identification is? Objection sustained on the Objected to by plaintiffs' counsel. ground that the witness had not shown that he had seen Mrs. Hynes write her signature, or had ever received any letters signed by her, or had shown in any way that he was acquainted with her signature. To which ruling defendant's counsel excepted." At Circuit, judgment was entered for plaintiff. The Court of Common Pleas at General Term affirmed the judgment. The Court of Appeals affirmed the judgment. FOLGER, Ch. J. [on this point]: The court did not allow the witness, Loader, to testify that the handwriting of the signature to the lease of the premises in Leverton street was that of the adult plaintiff. The witness had never seen her write; he had no knowledge of her handwriting save that got by looking upon two writings other than the signature to this lease, which other writings she had acknowledged in his presence and with the writings then before them, to have been penned by her. Those other writings were two signatures of names of persons and one written name of a place of residence, as shown by a signature book kept by a bank at which she had opened two accounts of money deposited by her. These writings were not in evidence in the case; that is, they were not produced before the jury and kept in court throughout the trial. The witness who controlled them was examined beyond the seas on commission. He produced them be Hynes v. McDermott, 82 N. Y., 41. fore the commissioner, but refused to part with them. Copies were taken in manuscript by the commissioner and annexed to the deposition of the witness. Copies were also taken by the photographic process and certified by the commissioner and annexed to the deposition of the witness. The witness, Loader, was presented to the court as doubly competent to speak on an issue as to the genuineness of handwriting, as an expert, and as having personal knowledge of the handwriting of the adult plaintiff. It does not appear from the case that the trial court determined whether he was qualified to speak as an expert. We will assume that he was, and that had the trial court thought it needful to pass upon the question, it would have held that he was. Yet, in our judgment, it was not proper to receive his testimony as that of an expert, and by a comparison of writings. An expert in handwriting, when speaking as a witness only from a comparison of handwriting, that is, with two pieces of it in juxtaposition under his eye, should have before him in court the writing to which he testifies and the writings from which he testifies; else there can be no intelligent examination of him either in chief or cross; nor can there be fair means of meeting his testimony by that of other witnesses. This requirement is included in the rule that there can be no comparison of handwriting, unless the pieces of writing by which comparison is made are properly in evidence in the case for some purpose other than that of being compared (Randolph v. Loughlin, 51 N. Y., 456; Dubois v. Baker, 30 id., 355; Miles v. Loomis, 75 id., 288). The nearest approach to having before the witness at the trial the writings by which comparison had been or was to be made, was the bringing of the photographic copies. There was no proof of the details of the process by which they were taken, nor as to accuracy of the work. We think that a comparison of a signature in dispute, with such photographic copies of other writings, for the purpose of allowing an opinion from an expert as to the character of the signature, as real or feigned, when the originals, from which the copies are made, are not brought before the jury, and may not be shown to other witnesses, ought not to be permitted. Photographs that have been taken of persons found dead have been admitted in evidence in this state, in Hynes v. McDermott, 82 N. Y., 41. aid of other proofs of identity, but not alone. They were characterized as slight evidence in addition to other and more reliable testimony (Ruloff v. People, 45 N. Y., 213). A photographic picture was more unreservedly admitted as evidence upon the question of identity of person in Udderzook v. Commonwealth (76 Penn. St., 340). And in another case when the genuine signature and the disputed signature were both brought into court, magnified photographic copies of each, together with the originals, were submitted to the inspection of the jury, and it was held not to have been error (Marcy v. Barnes, 16 Gray, 162). But copies of letters in a letter-book produced by impress, or by a machine, have been rejected (Comm. v. Eastman, 1 Cush., 189). It would be carrying the matter much farther, to permit an expert to compare photographic copies of signatures, and therefrom to testify as to the genuineness of a disputed signature. We may recognize that the photographic process is ruled by general laws that are uniform in their operation, and that almost without exception a likeness is brought forth of the object set before the camera. Still, somewhat for exact likeness will depend upon the adjustment of the machinery, upon the atmospheric conditions and the skill of the manipulator. And in so delicate a matter as the reaching of judicial results by the comparison of writings through the testimony of experts, it ought to be required that the witness should exercise his acumen upon the thing itself which is to be the basis of his judgment; and still more, that the thing itself should be at hand, to be put under the eye of other witnesses for the trial upon it of their skill. The certainty of expert testimony in these cases is not so well assured as that we can afford to let in the hazard of errors or differences in copying, though it be done by howsoever a scientific process. Besides, as before said, there was no proof here of the manner and exactness of the photographic method used. It was right not to receive Loader's evidence as that of an expert. The witness was also offered as one having acquaintance with the handwriting of the adult plaintiff. All his means of knowledge have been stated. The testimony was finally rejected, after the objection made to it, that it was a collateral fact whether the lease was signed by the plaintiff, and that the defend |