
    Francis A. Cleary, Respondent, v. The DeBeck Plate Glass Company, Appellant.
    (Supreme Court, Appellate Term,
    May, 1907.)
    Negotiable instruments — Actions — Presumptions and burden of proof; Evidence admissible under pleadings •—Real party in interest and consideration.
    In an action on a check drawn by defendant to the order of cash and produced by plaintiff and offered and received in evidence upon the trial without objection, where it appears that the check was drawn for due consideration moving from a third party to whom it was originally delivered, a judgment for plaintiff should be affirmed.
    In such an action the defense that the plaintiff is not the real party in interest is an affirmative defense and must be pleaded.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.
    Osborne, Hess & Churchill (William D. Heed and Charles A. Taussig of counsel), for appellant.
    Robert B. Knowles, for respondent.
   Gildersleeve, J.

Plaintiff sued to recover on a check payable to the order of “ Cash,” signed by the plaintiff as treasurer and by A. M. DeBeck as president of the defendant company. Upon the trial the plaintiff’s attorney produced the chuck; it was admitted as evidence without objection and the attorney testified that he presented it to the president of the defendant, who told him that the check had been given for a valuable consideration but that he could not pay it just then. It was also shown that the check had been presented to the bank upon which it was drawn on several occasions and payment demanded and refused. The answer of defendant was a general denial. No evidence other than the production of the check was given by the plaintiff as to its ownership. This constituted prima facie evidence of the plaintiff’s ownership. Hays v. Hathorn, 74 N. Y. 486. When the defendant attempted to prove that the plaintiff had not, but that some other person had, paid the consideration for the check, the court ruled that, as there was no defense of lack of consideration or that the plaintiff was not the real party in interest, such evidence was inadmissible. There was proof that the defendant had received the amount of the check in cash at the time it was given from one Wells. The defendant’s manager went to Wells, who represented “ Wells Brothers Co.,” a concern interested in the defendant company, and procured the money. Subsequently the check was drawn, signed by the plaintiff who was treasurer of the defendant company and by DeBeck, the president, addressed and mailed'to Wells. How or'in what manner the plaintiff became"possessed of the check does not appear. So far as the defendant is concerned there was no lack of consideration for the check. Wells had paid it the money; he could dispose of the check in any way he saw fit, by gift or otherwise, and the defendant cannot complain. ‘ Payment of the check by the defendant, under the circumstances disclosed by the testimony here, is ample protection to it and showing a lack of consideration passing between Wells and the plaintiff is of no avail to the defendant. As to the defense of.the plaintiff not being the real party in interest, such a defense is an affirmative one and must be pleaded. Spooner v. D., L. & W. R. Co., 115 N. Y. 22, 30; Fourth Nat. Bank v. Mahon, 38 App. Div. 198, 199.

Giegerich and Erlanger, JJ., concur.

Judgment affirmed, with costs.  