p. 537August Bringman and Annetta Hansel, as Administrators, etc., of Frederick Ments, Deceased, Appellants, v. John C. D. Von Glahn, Respondent.Headnote
Bills and notes—presumption that a promissory note is a valid obligation and has a good consideration.The plaintiffs in an action upon a promissory note, to which the defense of want of consideration has been interposed, are entitled to rest after reading the note in evidence, as that raises the presumption that the note is a valid obligation based upon a good and legal consideration, and imposes upon the defendant the burden of showing a want of consideration; if the defendant offers any evidence showing, or tending to show, want of consideration, it is incumbent upon the plaintiffs to show the existence of a sufficient consideration by a fair preponderance of evidence.
Appeal by the plaintiffs, August Bringman and another, as administrators, etc., of Frederick Ments, deceased, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered in said court on the 3d day of May, 1901, upon the decision of the court dismissing the. complaint upon the merits.
Robert H. Roy, for the appellants.
Robert A. Morrison [Charles Bradshaw with him on the brief], for the respondent.
This action is upon a promissory note made by the defendant in favor of the intestate of the plaintiffs. The defendant admitted the making and delivery of the note, the non-payment thereof and the status of the plaintiffs. He denied that the note was given for value or that the intestate ever gave any consideration therefor. His counterclaim was withdrawn because the subject thereof had been embodied in a claim filed against the estate. The plaintiffs read the note in evidence and rested, and thereupon the defendants offered certain testimony. The learned court gave judgment for the defendant, dismissing the complaint on the merits. The instrument imported consideration. (Neg. Inst. Law [Laws of 1897, chap. 612] § 50 ; Hegeman v. Moon, 131 N. Y. 462 , 467.) When
p. 538the plaintiffs read it in evidence they became entitled to the presumption . that it was “ a valid obligation based upon a good and legal consideration, and the burden of showing that there was a want of consideration rested upon the defendant;”
(Durland v. Durland, 153 N. Y. 67 , 74, et. seq.) They could, therefore, then safely rest. If the defendant had offered any evidence that -showed or tended to show want of consideration, then it was incumbent upon the plaintiffs to show by a fair preponderance of evidence upon the whole case that there was consideration. But as the testimony offered by the defendant did not show -or tend to show any failure of consideration, the judgment must be reversed and a new trial ordered, costs to abide the event.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.