
    Morris Berler, Respondent, v. Solomon S. Grossman, Appellant.
    Supreme Court, Appellate Term, First Department,
    January 2, 1947.
    
      Abraham Dolinsky for appellant.
    
      Joseph Apfel and Morris Berler, in person for Morris Berler, respondent.
   Memorandum

Per Curiam.

Although there was no affirmative defense of lack or failure of consideration for the negotiable instrument in the hands of one not a holder in due course and for value, the court, in the interests of justice, should have permitted the defendant to offer proof that the consideration for which the instrument had been given had failed.

The judgment should be reversed and a new trial ordered, with $20 costs to appellant to abide the event.

Hammeb, Shientag and Edeb, JJ., concur.

Judgment reversed, etc.  