I think that the court erred upon the trial in excluding the evidence offered by the defendant, to show by the witness Spaulding, who had testified that on the first of May, 1867, he had loaned the defendant one hundred dollars, and he wanted two hundred; that shortly after the first of May he loaned the defendant one hundred dollars more, making in the aggregate the entire amount which he desired to borrow.
The object of the evidence was to prove that the defendant had obtained the money which he desired from another party and thus establish that it was improbable that he had procured it upon the note in question.
The testimony shows that the defendant originally designed to raise two hundred and fifty dollars for the purpose of paying interest money upon a mortgage on his farm. The defendant, denied the execution of the note, and that he received the money upon the same from any one, and there was no proof that he ever did receive it. To rebut any presumption arising from the circumstance that the defendant required money to meet his interest, it was competent to prove that he had received the money, or a portion thereof, from another and a different source, and borrowed it of the Avitness. •
He.had proved already, without objection, that the witness had *237loaned him one hundred dollars, and if this was proper it was equally so to establish that he had procured another one hundred dollars from the same or any other party. By such evidence he made out that he was almost entirely provided with money to meet his interest, and therefore was under no necessity of borrowing it upon the note in question. In fact, that he had no use for the money.
In a case like the one at har, circumstances of this kind not only repel inferences to be drawn from some of the facts presented, but often tend to explain motives and throw light upon the questions in controversy. The evidence offered should have been allowed to go to the jury for what it really was worth, and its exclusion was erroneous.
I am also of the opinion that the judge, at special term was right in granting a new trial, for the reasons: 1st. That the verdict was against the preponderance of evidence; and, 2d. That there was reason to apprehend that the jury had been misled by prejudice, or labored under misapprehension as to the facts. It is the dutyof the court “"to set aside a verdict which is clearly against the weight of the evidence.” Smith v. The Ætna Life Ins. Co., 49 N. Y. 211. Beckham, J., says in the case cited, “ Justice would be promoted if the supreme court should more frequently exercise its unquestioned right of reviewing verdicts upon the facts.”
The evidence tending to show that the signature to the note was in defendant’s handwriting was very slight, and all of the plaintiffs’ witnesses on that subject had but little, if any, acquaintance with the defendant’s handwriting. On the other hand, the defendant swears that he never executed or authorized any other person to sign the note, and the proof shows that he had nothing to do with obtaining the money ; that he never had the note, had no knowledge who did obtain it, and, as hereinbefore stated, that he obtained some money from another party for the purpose of meeting the payment which he desired.
The town clerk, county treasurer, supervisor of the town, and two other witnesses who had seen the defendant write and were well acquainted with his signature, all swear positively that the signature to the note is not in the handwriting of the defendant. The person, Mr. Fish, whose name was signed to the note, also testifies that his signature is forged and it is so conceded.
It is true that two witnesses of the plaintiff testify that Bement, *238who went with the defendant for the purpose of obtaining the loan of the testator, or some one answering his description, who gave another and a different name, delivered the note and received the money, thus contradicting Bement’s positive evidence that he had nothing to do with the matter, but this, without connecting the defendant in some way with the delivery of the note, which is conceded to have had one forged name attached to it, is not strong enough to be entirely controlling. It at most creates a suspicion, but should not be allowed to overcome the strong, positive and direct testimony which establishes that the note was not in the defendant’s handwriting, and that he had nothing whatever to do with its making, delivery, or the fruits which were realized from it.
• There are some other strong circumstances bearing on the case, which tend in the same direction, and there is quite enough shown, I think, to authorize a judge, in the exercise of a sound discretion, to say that a new trial should be granted. Unless we can see that this discretion has not been judiciously and properly exercised, or that it has been abused, or hold that where there is the least conflict of testimony, this court will not interfere, I think that the order of the special term must stand.
I am not prepared to go to any such extent, and upon the facts, as well as upon the ground that evidence was improperly excluded, am in favor of affirming the order with costs of appeal.