
    Harry Ginsberg, Respondent, v. Oakhurst Gardens, Inc., Appellant, Impleaded with S. Henri Finkle and Others, Defendants.
    First Department,
    March 10, 1930.
    
      William M. Smith of counsel [McLaughlin & Stern, attorneys], for the appellant.
    
      Harris Berlack of counsel [Stanley H. Fuld with him on the brief; Frank Aranow, attorney], for the respondent.
   Proskauer, J.

This action was brought to recover upon a promissory note bearing the signature Oakhurst Gardens, Inc., Benjamin Haas, Pres.” and dated May 13, 1927. The answer denied the making and delivery of the note.

Upon the trial the plaintiff proved the handwriting of Benjamin Haas. The note was then admitted in evidence over the objection and exception of the defendant, and the plaintiff rested. No witness was called to prove that Benjamin Haas was the president of Oakhurst Gardens, Inc., on the 13th day of May, 1927. The plaintiff contends that this defect is supplied by certain admissions in an affirmative defense. The allegations of that defense are that Benjamin Haas was president of the corporate defendant prior to July 23, 1927, that he resigned on or about July 1, 1927, and that thereafter, in pursuance of a fraudulent conspiracy, he executed the note in suit and antedated it to May 13, 1927. The plaintiff seeks to take advantage of that portion of the affirmative defense which alleges that Haas was president prior to July 1, 1927, and to ignore the accompanying allegations that this note was executed after he ceased to be president. The plaintiff cannot thus escape the burden of proving the execution of the note by the corporation through the agency of Haas at a time when he was president. An allegation in the answer that Haas was president, but executed this note after he ceased to be president, cannot fairly be construed into an admission of the execution of the note by Haas while he was president.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Dowling, P. J., Finch, McAvoy and Martin, JJ., concur.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.  