
    Charlotte F. Madden, Appellant, v. George H. Gaston, as Executor, etc., of Eliza Wilson, Deceased, Respondent.
    First Department,
    March 11, 1910.
    Bills and notes—check — delivery of check with amount blank—presumptions— authority of payee to insert amount — burden on payee to show that blanks were filled within reasonable time.
    The payee of a check, which was originally delivered with the amount left blank, is not under the burden of showing authority to fill in the blank.
    By section 35 of the Negotiable Instruments Law the production of the check raises a presumption of a valid delivery by the drawer and, by virtue of section 33, the delivery operates as pi’ima facie authority to fill in the blank for any amount.
    But the latter section also provides that in order that the instrument delivered in blank may be enforced against one who became a party prior to its completion, it must be filled in strictly in accordance with the authority given, and within a reasonable time and there is no presumption whatever as'to the time within which the blanks were filled.
    Hence, the burden is upon the payee to show that they were filled in within a reasonable time.
    
      It seems, that such blanks were not filled in within a reasonable time where there was a delay of over eight months after delivery.
    Appeal by the plaintiff, Charlotte F. Hadden, from adjudgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of ' November, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term in a suit on two checks alleged to have been signed by the defendant’s testatrix in blank and delivered to the plaintiff and thereafter by her filled out with the amounts .of $5,000 and $10,000 respectively.
    The answer put in issue the making of the checks, their delivery, the consideration and due filling out of the blanks. The plaintiff proved the signature of the maker of the checks and offered them in evidence, but they were excluded by the court upon the ground that there was no proof of the authority given to fill up the blanks. The plaintiff then called the defendant, who testified that on the day before the death of his testatrix he had a conversation with the plaintiff and then saw the checks in question or similar papers.
    
      John MgG. Goodale, for the appellant;
    
      Gormly J. Sproull, for the respondent.
   Miller, J.:

The production of the checks by the plaintiff raised a presumption of a valid and intentional delivery of them to her by the maker. (Neg. Inst. Law [Gen. Laws,, chap. 50; Laws of 1897, chap. 612], § 35; revised in Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43]; § 35.) Such delivery operated as prima faoie authority to fill up the blanks for any amount. (Neg. Inst. Law, § 33, as amd. by Laws of '1898; chap. 336; revised in Keg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43J, § 33.) The learned trial court was, therefore, wrong in holding that it was incumbent upon the plaintiff to prove her authority to fill up the blanks, as the statute imposes the burden upon the defendant to show the agreement, and that its terms have been violated, if that be claimed, and that was the rule at common law. (Davidson v. Lanier, 4 Wall. 447.) Said section 33 also provides: “In order, however, that any such instrument, when completed, may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with" the authority given and within a reasonable time.” It seems to me that there can be no presumption one way or the other as to the time within which the blanks were filled up. Therefore, the burden was upon the plaintiff, who asserted it, to prove that the blanks were filled up within a reasonable timé. It is alleged in the complaint that the blank checks were delivered on the 22d of October, 1907. The maker died on the 9th of June, 1908. There is evidence which, perhaps, would justify the inference that the defendant saw the checks on the eighth of June in their present condition. Other than that there is nothing to show' when the checks were filled up, and certainly from October 22, 1907, to June 9, 1908, is, unexplained, more than a reasonable time. However, the plaintiff could only prove one thing at a time.- The checks were excluded upon a ground which the plaintiff could not obviate, and that ruling virtually ended the case. Wherefore, the' plaintiff should be permitted another opportunity to. prove her case.

The judgment should be reversed and a new trial granted, with costs to app'ellant to abide event.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

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