
    Arthur M. Hunter et al., Respondents, v. James G. Batterson, Jr., Appellant.
    (City Court of New York, General Term,
    May, 1899.)
    Bills and notes — Fraud in the inception of a note requires the holder to prove his bona tides.
    Where the maker of a check alleges that the payee obtained it of him by fraud, the holder must, show affirmatively that he himself is a hona fide holder.
    Appeal from judgment in favor of the plaintiffs entered upon a verdict directed by the court and from an order denying a motion to set aside verdict.
    Philip Carpenter, for appellant.
    Allan Robinson (Henry W. Bean, of counsel), for respondents.
   O’Dwyer, J.

The answer alleged that the check in question had been obtained from defendant by the payee by me.ans of false and fraudulent representations and defendant should have been allowed to prove.the alleged fraud.

If the defendant had been permitted to prove, and had proved, the defense of duress, the burden would have been thereby .thrown, upon the plaintiff to prove that it gave value for the noté, and the circumstances under which it was received.

“A plaintiff, suing upon a negotiable note or bill, purchased before maturity is presumed, in the first instance, to be a hona.fide holder. But, when the maker has shown that the note was' ob"tained from him under duress, or that he was defrauded of it, the plaintiff will then be required to show under what circumstances and for what value he became the holder.” First National Bank v. Green, 43 N. Y. 298.

The burden of proof was improperly placed on defendant to show that the plaintiff was not a bona fide holder and a holder without notice of the fraud. If the defendant had been permitted to show that the check had been procured from him by fraud upon the part of the payee, the presumption that the plaintiff was a bona fide holder would no longer obtain, and plaintiff could not recover without showing that he had received the check without knowledge of the fraud and had paid value therefor. Grant v. Walsh, 145 N. Y. 503.

For the error complained of,, the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Fitzsimons, Ch. J., and Scotchman, J., concur.

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