Opinion
June 19, 1925.
Samuel Seid, for the appellant.
Emanuel Mehl, for the respondent.
Judgment and order unanimously reversed upon the law, with thirty dollars costs to appellant, and motion for summary judgment denied, with ten dollars costs.
If the wife of the payee presented the check for certification after it is claimed to have been transferred to a third party and also to the plaintiff, it is a circumstance which tends to show that the plaintiff is not a holder in due course, and was not a holder at all at that time, as he claims he was. Possession of a negotiable instrument indorsed in blank by the payee is presumptive evidence of the possessor's title to it. ( Hays v. Hathorn, 74 N.Y. 486, 491; Newcombe v. Fox, 1 A.D. 389.) And this is true although it bears the holder's indorsement making it payable to the order of a third party, or the holder's indorsement is followed by subsequent indorsements. ( McNeill v. Shellito, 185 A.D. 857, 859, 860; Zimmer v. Chew, 34 id. 504, 508.)
The fact that the answering affidavit merely alleges upon information that the check was presented by the payee's wife, is, we think, the equivalent of a statement of fact, because it is not denied, and plaintiff cannot claim surprise because a similar statement was contained in the opposing affidavit submitted on a prior motion for summary judgment. The affidavit, therefore, creates an issue that must be tried.
Present: CROPSEY, LAZANSKY and MacCRATE, JJ.