
    AVERBUCK v. BECHER et al.
    (Supreme Court, Appellate Term.
    May 9, 1912.)
    Bills and Notes (§ 499)—Burden of Proof—Affirmative Defenses.
    The burden was upon the defendant to prove his affirmative defense that the note sued on had been paid or released by an agreement to exchange it for other notes.
    [Ed. Note.—Eor other cases, see Bills and Notes, Cent. Dig. §§ 1695-1697; Dec. Dig. § 499.*]
    Appeal from Municipal Court, Borough of - Manhattan, Eighth District.
    Action by Harris Averbuck against Nathan Becher and another. From a judgment for defendant Solomon Becher, plaintiff appeals.
    Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ.
    Joseph Krinsky, of New York City, for appellant.
    J. Carl Becher, of New York City, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes*
    
   GERARD, J.

Action on a promissory note. The defendant set up an affirmative defense that an agreement was entered into by plaintiff to exchange the note on which he sued for two notes, and to release the maker and indorser of the note on which he sued. The learned court below charged the jury that the plaintiff—

“must satisfy you by a fair preponderance of the evidence that this note for $150 was never paid, and that no agreement had been made that it should be paid by the acceptance of these two notes.”

This, of course, was error. The burden was on defendant to prove the affirmative defense.

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