
    Staten Island National Bank & Trust Comany, Appellant, v. Armand Buccello, Respondent.
    Supreme Court, Appellate Term, First Department,
    June 30, 1955.
    
      Edgar Hills and George M. Gunderson for appellant.
    
      Joseph A. Fontanelli, Jr., and Rocco J. Amato for respondent.
   Per Curiam.

Defendant’s attorney obviously could not have personal knowledge of a negative, viz., that defendant had never received the T.V. set. His affidavit was therefore hearsay. Since no affidavit by defendant himself was submitted, no defense to the action was established, even prima facie. Furthermore, failure of consideration is not one of the defenses listed in section 94 of the Negotiable Instruments Law which shifts the burden to plaintiff, under section 98 of the Negotiable Instruments Law to show it is a holder in due course (see Schwartz v. Armand Fried, Inc., 189 Misc. 66, and cases there cited; cf. Karpas v. Bandler, 218 App. Div. 418). Defendant failed to submit any facts tending to indicate that plaintiff was not an innocent holder for value.

The order should be reversed, with $10 costs, and motion granted.

Hofstadter, Schrelber and Hecht, JJ., concur.

Order reversed, etc.  