
    LEWIS v. BITTNER et al.
    (Supreme Court, Appellate Term, First Department.
    June 14, 1915.)
    Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Charlotte Lewis against John Bittner and another. From judgment for plaintiff, defendant Bittner appeals.
    Affirmed.
    Otto H. Droege, of New York City, for appellant.
    Frank H. Coyne, of Yonkers (Jerome C. Jackson, of New York City, of counsel), for respondent.
   PER CURIAM.

Judgment affirmed.

LEHMAN, J.

(dissenting). The plaintiff, an indorsee of a note, having introduced the note in evidence, rested. The defendant then attempted to establish his defense that the note was obtained from him by the payee fraudulently. The trial justice ruled out this testimony “unless counsel can show that this holder got it after maturity or with notice of infirmity.” There is no question but that, if the defendant had then rested, his exception to this ruling would have required a reversal of the judgment. The defendant did not, however, rest, but called the plaintiff as his witness, and her testimony established that she was a bona fide holder for value. It is contended that with this proof in the case the previous ruling of the trial justice becomes immaterial. In this view I cannot concur. The plaintiff was an interested witness, and the truth of her story is open to some suspicion. She is a sister of the payee, and she claims that the note was given to her in payment of a pre-existing debt after a written request for such payment was made upon her sister, yet she fails to produce the letter requesting such payment, and her testimony in regard to the pre-existing debt is very' vague. If the plaintiff had taken the stand in her own behalf, the defendant would have cross-examined her, and even though her testimony was uncontradicted, yet since it was that of an interested party, it would not have been conclusive. The ruling of the trial justice, however, compelled the defendant to call the plaintiff himself, and precluded him from cross-examining and impeaching her testimony. Under these circumstances, I think the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.  