Opinion
October 29, 1962
In an action on a negotiable promissory note, plaintiff appeals from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County, rendered December 19, 1961 upon the court's oral decision, after a nonjury trial, as dismissed the complaint against defendants George C. Tsantes and James Tsantes at the close of plaintiff's case. Order and judgment, insofar as appealed from, reversed and a new trial granted as to said defendants, with costs to plaintiff to abide the event. In our opinion, the receipt in evidence, without objection, of the instrument sued upon, signed by said two defendants (and by a third defendant, Christo D. Tsantes, as to whom the action was severed and discontinued upon the trial), and the proof as to the balance due thereon, established a prima facie case (Negotiable Instruments Law, §§ 30, 35, 55; Ogden, Negotiable Instruments [5th ed.], § 390; 88 C.J.S., Trial, § 115; 11 C.J.S., Bills and Notes, § 686). It was error, therefore, to dismiss the complaint at the close of plaintiff's case. We are also of the opinion that, in any event, there was an improvident exercise of discretion by the trial court in denying plaintiff's application to reopen the case to supply the alleged deficiencies in its proof by witnesses who were immediately available (cf. Asserson v. City of New York, 195 App. Div. 12). Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.