
    Simon Auerbach et al., Resp’ts, v. Henry C. L. Peetsch, Impl'd, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed March 7, 1892.)
    
    Sills ahd xotes—Aeeir^itive oe issue.
    In an action against the maker and payee of a promissory note the former answered separately and alleged non-delivery of the note and want of consideration, but did not deny any of the allegations of the complaint. On the trial defendant’s counsel asked for the affirmative of the issue, which the court denied. Held, error.
    
      Appeal from a judgment of the general term of the city court affirming a judgment of the trial term in favor of the plaintiffs, entered upon the verdict of a jury for $1,489.66 damages and costs.
    
      Johnson & Johnson, for app’lt; Meyer Auerbach, for resp’ts.
    
      
       Reversing 39 St. Rep., 211.
    
   Daly, Ch. J

The complaint set forth that the defendant Peetsch at New York city made his promissory note in writing dated December 3, 1890, for $1,351.20, payable to the order of the defendant Moonelis four months after date at the Lenox National Bank, for value received, and that Moonelis thereafter and before maturity endorsed and transferred said note for value to the plaintiffs, who are now the lawful owners and holders of said note , that the note was duly presented for payment at the-place where the same was payable and payment thereof demanded and refused, whereupon said note was duly protested for non-payment, of all of which defendants had due notice, and that the-whole of the principal sum is due and unpaid.

The defendant Peetsch answered separately and alleged, first, that the note described in the complaint was. not delivered by him to the defendant Moonelis nor to any other person or persons, nor did he ever receive any value therefor from Moonelis or any other person, of all which the plaintiffs had notice; second,, that the plaintiffs did not purchase said note for value in good faith from Moonelis, .nor did they part with any value therefor,, and that they are not the lawful owners or holders thereof as against the defendant Peetsch.

The issues came on for trial before the court and jury, and the-counsel for defendant asked the court for the affirmative of the issue. The motion was denied and exception taken. It would seem that the affirmative was with the defendant. None of the-allegations of the complaint were denied, and under the Code they were, therefore, to be taken as true, and plaintiffs were entitled to recover without any proof. Code, § 522. The complaint set forth a cause of action. It is true that it did not aver that the maker delivered the note after he made it, but it was not necessary to allege delivery by the maker. 2 Wait’s Pr., 327; Peets v. Bratt, 6 Barb., 662. Delivery to the plaintiff was alleged and not denied. There was, therefore, no delivery to-be proved by plaintiffs, as they claimed upon this appeal, and they were not entitled to the affirmative, not being required to offer' any evidence in support of their cause of action. Fleischmann v. Stern, 90 N. Y., 110.

The right of the affirmative belonged to the defendant, who had affirmatively pleaded non-delivery of the note by him and want of consideration. It was, therefore,fifis right to establish this defense, and as he has thus held the affirmative, “ he had the right to open and close the evidence, and the learned judge erred in ruling to the contrary." Conselyea v. Swift, 103 N. Y., 604; 4 St. Rep;, 278.

The judgment will have to be reversed for this error, but it is; proper to say in respect of certain other exceptions taken by the: defendant to the exclusion of evidence offered under his defense that he ought to have been permitted to prove the facts regarding the making of the note in order to substantiate his defense of want of consideration as well as of non-delivery. That defense rested upon his own oath, and as his credibility had to be submitted to the jury, he had the right to show all the circumstances attending the execution and delivery of the paper; and in all cases where the right of recovery depends upon the plaintiff being a bona fide holder, the burden is cast upon the plaintiff of proving that he took the note before maturity for value and without notice of the matters set up as. a defense, and this he is to show after the defense has been made out. Nickerson v. Ruger, 76 N. Y., 279.

Judgment reversed and new trial ordered, costs to abide the event.

Bischoff, J., concurs.  