
    Frank J. V. Beck, Respondent, v. Osias Maller, Appellant.
    Second Department,
    March 19, 1909.
    Bills and notes — trial — evidence — presumption that plaintiff is-holder in due course.
    Where the maker of a promissory note sued by an indorsee admits that the note was made and delivered for a valuable consideration, and has not been paid, the plaintiff, after putting the note in evidence, may rest and rely on section 98 of the Negotiable Instruments Law providing that every holder is deemed prima facie to be a holder in due course.
    
      Jenks and Miller, JJ., dissented.
    - Appeal by the defendant, Osias Mailer, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 10th' day of June, 1908.
    
      Joseph J. Schwartz, for the appellant.
    
      Charles E. Francis, for the respondent.
   Woodward, J.:

This action was brought to recover upon a promissory note, resulting in a judgment in favor of the plaintiff. The complaint, which is verified, alleges the making, consideration, delivery and non-payment of the note, and alleges that the note was indorsed by the payee and delivered to a third person, indorsement by such third party and delivery to the plaintiff. The answer admits the making, delivery, consideration and non-payment, but denies on information and belief the indorsements, and sets, up affirmative defenses. The plaintiff introduced the note in evidence with the indorsements thereon and rested. The defendant amended his answer and set np a certain agreement, which agreement was the consideration for the note, and alleged its non-fulfillment, and this issue was tried out, resulting in a determination in favor of the plaintiff. There was no fraud alleged; merely that the plaintiff had failed to complete the performance of a certain agreement, and upon this issue there was a conflict of evidence. Under the provisions of section 98 of the Negotiable Instruments Law (Laws of 1897, chap. 612) every holder is deemed pt'ima facie to be a holder in due course, but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom lie claims acquired the title as a holder in due course. Under the admissions of the defendant that the note was made and delivered for a valuable consideration, there could be no defect in the title, and there was no reason, therefore, why thfe ' plaintiff should not stand upon the presumption provided for in section 98 above set forth. The defendant has had the opportunity, in spite of the admissions of "his answer, to litigate the question of a failure of the consideration, arid he is not in a good position to complain of the judgment which has been entered against him.

The judgment appealed from should be affirmed.

Gaynor and Rich, JJ., concurred; Jenks and Miller, JJ., dissented.

Judgment of the Municipal Court affirmed, with costs. .  