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Bringman v. Von Glahn

75 N.Y.S. 845 Court N.Y. App. Div. Decision date 1902-04-18 English

Delivered by JENKS, J.

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p. 845
BRINGMAN et al. v. VON GLAHN.
(Supreme Court, Appellate Division, Second Department.
April 18, 1902.)

Headnote

Action on Note—Consideration—Evidence.
As, under Negotiable Instrument Law, § 50, a note imports consideration, introduction of a note in evidence in an action thereon is sufficient to establish plaintiff’s claim, where defendant offers no evidence showing or tending to show any want or failure of consideration.
Appeal from municipal court.
Action by August Bringman and another, as administrators, against John C. D. Von Glahn. From a judgment dismissing the complaint, plaintiffs appeal.
Reversed.
Argued before GOODRICH, P. J. and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
Robert S. Roy, for appellants.
R. A. Morrison, for 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 nonpayment thereof, and the status of the plaintiffs. He denied that the note was given for value, or that the testator 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 His counterclaim was withdrawn because the subject thereof had been embodied in a claim filed against the estate.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 defendant offered certain testimony. The learned court gave judgment for the defendant, dismissing the complaint on the merits.

The instrument imported consideration. Section 50, Negotiable Instrument Law; Hegeman v. Moon, 131 N. Y. 462 , 467, 30 N. E. 487 . When the 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 on the defendant.” Durland v. Durland, 153 N. Y. 67 , 74, 47 N. E. 42 , 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 concur.

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