
    Joseph Hoffay, Respondent, v. Samuel Hershenstein, Appellant.
    First Department,
    April 10, 1931.
    
      Frederick E. Weinberg, for the appellant.
    
      Francis X. Stephens, Jr., for the respondent.
   Sherhan, J.

The action is upon a series of notes made by defendant to the order of plaintiff, under a written agreement, pursuant to which they were issued and which contains an acceleration clause.

The answer pleads, among other things, a failure of consideration. This issue as well as an issue of fraud likewise tendered by the answer was submitted to the jury. The trial court instructed the jury that the burden of proof of establishing both issues to the satisfaction of the jury rested upon defendant. In so far as the issue of lack of consideration is concerned, the charge Was erroneous, for the burden of proof to establish consideration was upon plaintiff, the notes themselves being only presumptive evidence of consideration. (Hardinge v. United States Zinc Co., 171 App. Div. 742; Abrahamson v. Steele, 176 id. 865.)

But this error is of no avail to appellant, because no facts were presented upon which a jury might have determined that issue in his favor. The record clearly discloses that there was no evidence showing an absence or failure of consideration to rebut the presumption of consideration carried by the notes themselves.

The determination appealed from should be affirmed, with costs.

Finch, P. J., McAvoy, Martin and O’Malley, JJ., concur.

Determination affirmed, with costs and disbursements.  