
    Lafayette Trust Company, Respondent, v. Nathan Lacher and George Laubentracht, Appellants.
    Second Department,
    July 29, 1910.
    Bills and notes — complaint stating cause of action on note — evidence — proof of payment — authority to act as agent for plaintiff.
    A complaint on a promissory note which sets forth the note, alleges that it was made by one of the defendants, indorsed by the other, discounted by the plaintiff, that it was presented at maturity, was not paid and was thereafter protested, and further alleges that no part of it has been paid, states a good cause of action.
    Evidence in an action on a-promissory note examined, and held, that testimony tending to show payment was erroneously excluded on the theory that the person through whom the transaction was carried out was not shown to have been authorized to act' for the plaintiff.
    Appeal by the defendants, Nathan Lacher and another, from a judgment of the Supreme Court in favor of the plaintiff, entered
    
      in the office of the. clerk, of the county of Kings on the 14th day of January, 1910, upon the verdict of a jury' rendered by direction of the court, and also from an order entered in said' clerk’s office on ■ the 24th day of January, 1910, denying the defendants’ motion for a new trial made upon the minutes.
    
      Abraham C. Cohen for the appellants.
    
      Ward W. Pickard [Almet Reed Latson with him on the brief], for the respondent.
   Carr, J.:

This is an appeal from a judgment in favor of the plaintiff upon a promissory note. A verdict was directed by the trial court. The ’ defense was payment. The appeal is based upon two grounds of supposed legal error. The complaint is attacked as not stating facts. sufficient to constitute a cause of action, and a motion was made on the trial to dismiss it before any testimony was taken. ' The complaint sets forth the note, alleges its making by one-of the defendants, its indorsement by the other; its discount by -the plaintiff, its presentation at maturity, its non-payment and protest, and then further alleges that no part of it has been paid. What more should have been pleaded it is difficult to conceive. The objection to its supposed insufficiency is based upon section 534 of the Code of Civil' Procedure, and arises, as the appellants claim, from a failure to •state that “ there is due * * * thereon, from the adverse.party, . a specified sum.” A decision, of the Appellate Term in New York county is cited as an authority for itlie appellants’ contention (Elkan v. Edwards, 112 N. Y. Snpp. 1107). That case purports to-have been decided on the authority of Wright v. Deering (2 Misc. Rep. 296). In the last-cited case there was no allegation whatever of non-payment of the note, and it was held there that in the absence of such an allegation there was no averment of an indebtedness. In this case, however, there is an allegation of non-payment on presentation, and then an allegation of non payment generally.

The complaint at bar is good beyond cavil. There were, however, some rulings on the trial as to "the admissibility of evidence which may require a reversal of the judgment. The defense was payment. In support of this defense it. was sought to prove that the defendant Lacher was indebted to the plaintiff on a number of promissory notes, including the one here in suit, and that in pay- ■ ment and discharge of all of said obligations the defendant Lacher conveyed to one Boswell, grantee designated by the plaintiff, eight houses, and received from the plaintiff a package of these notes, including, as the defendant thought, the note now in question, but which had in fact been retained by the plaintiff contrary to the mutual agreement upon w’hich the real estate was conveyed. The transaction was carried through by the defendant Lacher' and one Mintz, appearing to represent the plaintiff, under ah agreement made in the plaintiff’s banking office. The court refused to allow this evidence to be considered until it was first established that Mintz had" power to act for the plaintiff in the transaction in question. It was shown that Mintz had some sort of connection with the plaintiff, participating in its conduct of business in its banking office, and that the defendant’s grantee in the deeds taken under the agreement with Mintz was the assistant secretary of the plaintiff. , The defendant thought that Mintz was a vice-president of the plaintiff, but no proof was- given that he held actually such office. There was proof that when the deed was delivered Mintz surrendered to Lacher some twenty or more' notes held by the plaintiff against Lacher as maker or indorser. These circumstances made out at least a fi'ima facie case of authority on the part of Mintz which the plaintiff might rebut, if it. could, by showing the exact relations between it and Mintz. While the defendants had the burden of sustaining their defense of payment, this burden did not require an absolute-demonstration on their part. The facts shown by them.were susceptible of a strong inference that Mintz was the plaintiff’s agent.

The judgment and order should be reversed and a new trial granted, costs to abide the evént.

Woodward, Jenks, Thomas and High, JJ., concurred;

Judgment and order reversed and new trial granted, costs to abide the event.  