Majority
p. 546Sam Ruck, Appellant, v. Philip Levine, Respondent. Supreme Court, Appellate Term, First Department, January 22, 1930.
Max F. Finkelstein for the appellant.
Nathan Bert Friedman for the respondent.
The defense of failure of consideration is not one of those specified in section-94 of the Negotiable Instruments Law, as rendering title to the instrument defective and, therefore, it did not cause a shifting upon plaintiff of the burden of proving he was a holder in due course. (See Neg. Inst. Law, § 98.) The burden was on the defendant to establish that plaintiff was not a holder in due course. As he failed to meet this burden the judgment is reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event. Appeal from order dismissed.
All concur; present, Lydon, Peters and Frankenthaler, JJ.