Opinion
February Term. Filed March, 1922.
Henry B. Mitchell ( Samuel Deutsch, of counsel), for appellants.
Silver Moskowitz ( Morris N. Bobis, of counsel), for respondents.
The complaint counts upon a trade acceptance; it contains the usual allegations in actions brought to recover on negotiable instruments. The answer simply denies that the plaintiffs are holders in due course and for value, and that there is nothing due on the note. The denials raised no issue, are wholly immaterial and a mere nullity. Abrahamson v. Steele, 176 A.D. 865. Upon the trial, instead of offering the instrument in evidence and resting on the legal presumptions in his favor, counsel for the plaintiff called a witness, who testified that he executed it on behalf of his firm and delivered it for value to the plaintiffs. He was cross-examined and the fact was developed that in executing the document he did not recall whether he informed his partner of the signing of the paper. This had nothing to do with the case; it was not a fact in issue and should have been excluded upon plaintiff's objection. If the note was delivered for lack of consideration, to prove the fact it was necessary to set it up affirmatively by way of separate defense. Abrahamson v. Steele, supra; Watson v. Universal Transportation Co., Inc., 194 A.D. 136. At the close of plaintiff's case the defendant moved to dismiss the complaint, which motion was granted by the court "on the ground there is no consideration." There was no basis for any such conclusion. Consideration is not only presumed, but becomes conclusive unless the defendant overcomes the presumption by competent proof.
Judgment reversed and new trial ordered, with thirty dollars costs to appellants to abide the event.
All concur.
Judgment reversed.