
    HENRY ROSINOFF AND E. CHARLES ALTSHUL, PLAINTIFFS-RESPONDENTS, v. FANNIE K. ALTSHUL, ADMINISTRATRIX OF VICTOR I. ALTSHUL, DECEASED, DEFENDANT-APPELLANT.
    Decided February 20, 1923.
    For the plaintiff, Julius Lichtenstein.
    
    
      For the defendant, J. Raymond Tiffany.
    
   Per Curiam.

This is a suit on a promissory note for $10,000 given by Victor I. Altshul under a trade name. It bears date of June 1st, 1918, payable six months after date, to the order of E. C. Altshul, and is endorsed by him and also assigned by a formal assignment after maturity to the plaintiff Bosinoff.

Victor I. Altshul died and the defendant Eannie K. Altshul, his widow, was appointed administratrix. She contests the claim of the plaintiff on the note and at her instance E. C. Altshnl was brought in as a party plaintiff. The note was proved and offered in evidence. There is no serious controversy as to its validity in its inception. An attempt was made to prove payment. This proof consisted of some statements made by E. C. Altshul which were supposed to indicate that his brother owed him $5,000 instead of $10,000, and also proof that his brother had turned over to him seven notes, six being for $2,000 each and one for $1,000.

Some reliance was placed by the defendant on the alleged suspicious conduct of E. C. Altshul after his brother’s death but this evidence was too hazy and uncertain to have any weight. The only question was whether there was proof of such connection between the seven notes and the $10,000 note that the case ought to go to the jury. We think not. The presumption is in favor of the holder of such a note, and while Bosinoff’s title can be no better than that of E. C. Altshul we think the evidence on the part of the defendant was so meager and uncertain that it cannot justify any inference of payment. It is an attempt to make conjecture do the work of facts.

We think, therefore, the trial judge was right in directing a verdict for the plaintiffs. The judgment is affirmed, with costs.  