
    PACKARD et al. v. FIGLIUOLO.
    (Supreme Court, Appellate Term.
    February 5, 1909.)
    Bills and Notes (§ 497)—Action on Check—Burden of Proof.
    In an action on a check drawn by defendant and indorsed by a third person, where the- uncontradicted evidence showed that the indorser obtained title to the check by fraud, his title was defective under the express provisions of Negotiable Instruments Law (Laws 1897, p. 732, c. 612) § 94,' and the burden was upon plaintiffs to prove that they or some person under whom they claimed had acquired the title as a holder in due course, under the express provisions of section 98.
    [Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 1676: Dec. Dig. § 497.*]
    Appeal from Municipal Court, Borough of the Bronx, Second District.
    Action by Nathan J. Packard and another against Julius Figliuolo. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial ordered.
    Argued before GIRDERSLEEVE, P. J., and GIEGERICH and SEABURY, JJ.
    Wayer & Acker, for appellant.
    Julius D. Tobias, for respondents.
    
      
      For other cases see same topic & § number In Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes
    
   SEABURY, J.

The plaintiffs sue a check drawn the de-

fendant and indorsed by one Daddio. The only evidence offered in behalf of the plaintiffs was the check, upon which payment had been stopped. The uncontradicted evidence shows that Daddio obtained title to the check by fraud. Daddio’s title to the check having been shown to be defective, the burden was upon the plaintiffs to prove that they, or some person under whom they claimed, acquired the title as a holder in due course. Negotiable Inst. Law (Laws 1897, pp. 732, 733, c. 612) §§ 94, 98.

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