Zwerdling v. Kitrosser

Appellate Terms of the Supreme Court of New York

Decided June 18, 1914

Appellate Terms of the Supreme Court of New York · decided 1914-06-18

1. Bills and Notes (§497*)—Bona Fide Holdeb—Fraudulent Divebsion —Presumptions—Evidence. Where defendant gave evidence that as between himself as maker of the note sued on and the payee there had been a fraudulent diversion of the notes, such evidence overcame the presumption that plaintiff, indorsee, was a bona fide holder for value, as provided by Negotiable Instruments Law (Consol. Laws, c. 38) §§ 91, 94, 98. [Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. § 497.*] 2. Bills and Notes (§ 537*)—Action by Indorsee—Bona Fide Holder— Question fob Juby. In an action on certain notes, where the evidence that plaintiff was a bona fide holder for value was unsatisfactory, it was error to direct a verdict for plaintiff. [Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.*]

Reversed, and new trial granted · Decided 1914-06-18

BIJUR, J.

¶1[1] Plaintiff sued upon promissory notes. Defendant gave evidence to the effect that as between himself as maker and the payee there had been a fraudulent diversion of the notes. This overcame the presumption that plaintiff, the indorsee, was a bona fide holder for value. See Negotiable Instruments Law, §§ 91, 94, 98.

¶2[2] The evidence thereupon adduced by plaintiff, to the effect that he had bought the notes in good faith for value and without notice of the infirmity, was, to say the least, quite unsatisfactory, and very plainly presented an issue to be determined by the jury. In this respect the case differs manifestly from Eisenberg v. Lefkowitz, 142 App. Div. *100569, 127 N. Y. Supp. 595, where, the direction of a verdict in favor of plaintiff was sustained.

¶3The judgment must be reversed, and new trial granted, with costs to appellant to abide the event. All concur.