
    Abraham H. Simon, Respondent, v. William Krimko and Jacob Kornweiss, Appellants.
    Second Department,
    June 17, 1910.
    Evidence—action on check—defense of payment — burden of proof.
    The burden of proof is on one asserting an affirmative fact.
    Where in an action for professional services the defendant counterclaims on a check and puts the same in evidence, the.burden of proof to show payment of the check is on the plaintiff.
    
      Appeal by the defendants, William Krimko and another, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 6th day of-January, 1910, and from an order denying the defendants’ motion for a new trial.
    
      Charles C. Peters, for the appellants.
    
      Max Lehman, for the respondent.
   Rich, J.:

This action was brought to recover upon a claim for professional services rendered by plaintiff for defendants, as an attorney at law. The answer was a general denial, and defendants set up a counterclaim of one hundred and sixty-three dollars and ninety-eight cents as follows: Seventyvthree dollars and ninety-eight cents as the value of merchandise delivered to the plaintiff, which is conceded, and ninety dollars as the amount of a check made by plaintiff to defendants, dated July 3, 1908. The plaintiff claimed that the check had been paid, and the issue raised by this claim was sharply contested upon the trial. The Municipal Court justice, in charging the jury in reference to this counterclaim, said: “ I charge that payment is an affirmative defense and is something that requires affirmative proof, but I charge that a counterclaim is in its nature by way of complaint and the burden of proof is on the defendants to make out their counterclaim by a fair preponderance of evidence.” After excepting to this charge, counsel for defendants requested the justice to charge as follows: “ I ask your Honor to charge that so far as the plaintiff claims he paid the check, the burden of proof is upon him to establish the payment, and by offering the check, the defendants prima facie make out their counterclaim.” This request was refused, and the exception to the refusal presents reversible error. The rule is that the burden of proof lies upon the party asserting an affirmative fact. In the case at bar several issues were involved, and the burden was upon each party to establish his.particular claim. The defendants, as proof of the counterclaim, introduced the check in evidence, and relied upon the presumption of non-payment. It is the settled law that possession of a written instrument evidencing an indebtedness, due from the maker thereof to the holder, is presumptive evidence of its non-payment. The plaintiff claimed that the check' had been paid, and the burden of proving payment was thrown upon him (Conkling v. Weatherwax, 181 N. Y. 258), and it was the duty of the Municipal Court justice to so charge.

The judgment and order of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.

Jenks, Burr, Thomas and Carr, JJ., concurred.

Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event.  