On May 1, 1878, the defendant, together with one W. A. Robbins, since deceased, made and delivered to Henry A. Gowdey, the plaintiff’s testator, a promissory note whereby they promised to pay $1,000 one year from that date to the order of the said Henry A. Gowdey, with interest at the rate of six per cent. This suit was brought to recover the principal and interest due upon that instrument. The defendant admits the execution and delivery of the . note sued upon, but claims to.have paid $950 of the principal and , all.of the interest except $24. He was successful in making out this defense to the satisfaction of- the jury, who rendered a' verdict *355against him only for the amount which he conceded to be due, $74.
To sustain the plea of payment, and also by way of counterclaim and set-off, the defendant relied upon a promissory note for $950, in which Henry A. Gowdey appears as maker and the defendant appears as payee. It bears date on April 2,1886, and is payable by its terms one day thereafter. After it had been produced and put in evidence, the plaintiff admitted that the defendant was entitled to an offset of $150; and although the facts are not brought out very clearly on the record, it is manifest from the briefs and from the oral argument before us that the point upon which the case turned was the question whether this note, since its execution,.had not been altered in date from 1885 to 1886, and in amount from $150 \o $950.
The learned trial judge told the jury that there was no evidence that it ever was altered except such as appeared upon the face of the papier, and in this I am inclined to think he was right, but it seems . to me he erred in adding, as he did near the close of his charge, the following statement in respect to the burden of proof concerning the alterations in the instrument: “ The defendant has produced
a paper which, on the face of it, is a defense to this suit, and the duty of explaining it by showing that it is something else rests with the plaintiff in this suit. The plaintiff assumes the burden of showing that that note is other than what it purports to be, or than what the defendant says it is.”
The note in question has oeen produced upon the argument of the present appeal for our inspection, and it certainly bears marks indicating that it may have been altered from the form in which it was first written. The body of the paper, all but the signature, is in the handwriting of the defendant, who has had possession of it always, and who would benefit by the changes which are alleged to have been made in the date and amount. Under such circumstances, I understand the rule in this State to be that the burden of explaining the apparent alterations in the instrument is upon the party producing the paper. (Tillou v. Clinton, etc., Insurance Co., 7 Barb. 565 ; O'Donnell v. Sarmon, 3 Daly, 424.) In the case at bar, the proper instruction to the jury would have been that if from the appearance of the paper they believed it had been altered as alleged, *356Ahen-the burden -was upon the defendant of showing that the alteration had been made before the note was signed.
¡No exception, however, .was taken to the portion of the charge ■ which I have quoted, nor did the counsel for the appellant make ■any request for a different instruction on the subject, which would have called the attention of the trial judge directly and distinctly to ■ the point, and doubtless have led to a correction of the charge in . that respect. ¡But even in the -absence of an .exception,. I think w.e ■ ought to grant a new trial under the unusual circumstances presented here,, where the rule laid .down by the court as to the harden. of ■ proof may well-have had a controlling influence upon the" verdict.
'The judgment should be reverséd .and -a new trial granted.
All concurred, except Brown, P. J., not sitting, and Pratt, J¡, not voting.
• Judgment and order denying motion for new trial on judge’s ■ . minutes reversed and new trial granted, on payment by the appellant, -within -twenty days, of -trial fee. and disbursements of trial, as ¡taxed, and-costs of-appeal. In default-of -such payment, judgment -and order -affirmed, with costs. Order denying motion for a new trial on. ground of surprise affirmed, without costs.