¶1Plaintiffs appeal from a judgment in favor of the defendants Vaccaro in an action against makers and indorsers of a post-dated check brought by holders acquiring title prior to date of instrument.
¶2'The trial judge gave no reason for his decision.; so that we do not know whether he decided the case upon the theory that the plaintiffs were mere assignees, or whether he regarded the instrument as negotiable and found that plaintiffs were not holders in due course.
¶3*240I am of the opinion that the requirement of negotiability was satisfied because within the meaning of the statute (Neg. Inst. Law,' § 23) the instrument when transferred was payable at a “ fixed or determinable future time specified therein, ” that is, on its date. If, however, the contrary view is taken, then no time of payment was ‘ ‘ expressed ’ ’ in the instrument, and, under the statute (§ 26), it was payable on demand.
¶4The testimony introduced in behalf of the defendants tended to, show, and the trial judge was authorized in finding, that the defendants made and delivered the check to M. Fine & Son upon the understanding that.it should.be held by the latter until performance of their agreement to deliver a quantity of scrap iron to the makers; that the payees refused to deliver the iron, and on or before the day fixed for performance transferred the instrument to the plaintiffs. Under the circumstances the transfer of the paper was in breach of faith and constituted a defect in the title thereto of M. Fine & Son, and thereby placed upon the plaintiffs the burden of proving that they acquired title as holders in due course. Neg. Inst. Law, §§ 94, 98; Interboro Brewing Co. v. Doyle, 165 App. Div. 646.
¶5The uncontradicted evidence establishes that plaintiffs were purchasers in good faith, without knowledge of the equities.
¶6The judgment must, therefore, be reversed and judgment directed in favor of plaintiffs for $200 and interest, with costs in this court and the court below, with leave to appeal to the Appellate Division.
¶7Weeks, J., concurs.