Opinion
February 5, 1932.
Appeal from the Municipal Court, Borough of Manhattan, Ninth District.
Levy, Kraus Leman [ Abraham J. Rosenblum of counsel], for the appellant.
Abraham Buchman, for the respondents.
While every holder of a negotiable instrument is deemed prima facie to be a holder in due course (Neg. Inst. Law, § 98), if it appears that he did not give value for the instrument such presumption would be overcome (Neg. Inst. Law, § 91). The burden of proof as to consideration has been held to be on the plaintiff ( Hoffay v. Hershenstein, 232 A.D. 149), although the defendant is required to plead lack of consideration affirmatively ( Abrahamson v. Steele, 176 A.D. 865). As the complaint failed to show how plaintiff obtained the instrument, the court below, in its discretion, had the right to order the particulars requested, in order to prevent surprise. However, the plaintiff should have been afforded an opportunity to furnish the particulars.
Order affirmed, with ten dollars costs, unless within five days after service of order entered hereon appellant furnishes the particulars. Upon compliance with condition order reversed and motion denied.
All concur; present, LEVY, CALLAHAN and UNTERMYER, JJ.