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YANK v. EISENBERG (06/28/62)

June 28, 1962

YANK
v.
EISENBERG, APPELLANT.



Appeal, No. 262, Jan. T., 1962, from order of Court of Common Pleas No. 6 of Philadelphia County, March T., 1955, No. 9569, in case of David Yank v. Jacob Eisenberg et al. Order reversed.

COUNSEL

Joseph Rappaport, with him Rappaport & Lagakos, for appellant.

Maxwell L. Davis, with him Herman S. Davis, and Davis and Davis, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 408 Pa. Page 37]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

On May 25, 1955, a judgment by confession under a warrant of attorney was entered in Court of Common Pleas No. 6 of Philadelphia county upon a $10,000 note dated May 18, 1955, payable to David Yank (Yank) and purporting to have been signed by Jacob Eisenberg and Bessie Eisenberg, his wife.

On May 11, 1960 Yank issued a sci. fa. to revive this judgment. Thereafter, Jacob Eisenberg and Bessie Eisenberg each filed a separate petition to show cause why this judgment should not be opened. To both petitions Yank filed answers and, after the taking of depositions by the parties, the matter came before Judge F. X. MCCLANAGHAN who entered an order refusing to open the judgment as to either Jacob Eisenberg or Bessie Eisenberg. From that order Bessie Eisenberg alone appeals.

The basic question on this appeal is whether the court below erred in refusing to open the judgment as to Bessie Eisenberg where she denies that she executed the note and there is no direct proof or any expert testimony as to the genuineness of her signature on the note.

Yank's position is that, through the intervention of his brother, Bernard Yank, he advanced $10,000 to Eisenbergs for use in a corporate business known as Royal Shoe Market, Inc., a corporation of which Jacob Eisenberg was president and Bessie Eisenberg the largest stockholder, and that he received a note in the amount of $10,000 containing a warrant for the confession

[ 408 Pa. Page 38]

    of judgment which bore the signatures of Jacob Eisenberg and Bessie Eisenberg. Bessie Eisenberg's position is that she did not sign this note, did not authorize anyone to sign it on her behalf and did not know of the existence of the note until the institution of proceedings to revive the judgment entered on the note. While Jacob Eisenberg took no appeal to this court his position in the court below must be noted: over a period of ten years prior to 1955, Jacob Eisenberg weekly engaged in gambling with a group of men, including Bernard Yank; that his losses became severe and, from time to time, he borrowed money from Bernard Yank; in May, 1955, when Jacob Eisenberg owed approximately $10,000, Bernard Yank induced his brother, David Yank, to advance this money and, in return, a note, signed by Jacob Eisenberg and to which Jacob Eisenberg had, without authority, affixed his wife's signature, was given to Yank.

In support of Bessie Eisenberg's position only she and her husband testified. Mrs. Eisenberg testified that she had not signed the note, that the signature on the note was not her signature and that she did not know of the existence of the note until after institution of the proceedings to revive the judgment. Jacob Eisenberg testified that he did sign the note but that his wife did not sign the note, her signature having been affixed by him without her knowledge or authority. On cross-examination, Jacob Eisenberg's attention was directed to testimony which he had given in September, 1955 in connection with the bankruptcy proceedings of Royal Shoe Market, Inc. At that time, Jacob ...


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