¶1The verdict for the plaintiff was wholly without support, and the state of the evidence warranted the direction of a verdict for the defendant.
¶2The action was by the indorsee against the maker upon an alleged check, received from the payee, and the defense was that the check had been altered in a material respect after it was issued, in that the date was changed from September 7, 1903, to September 3, 1903, on which last mentioned day the plaintiff claimed to have acquired the check for value.
¶3The alteration, if made without the maker’s authority, was material and operated to defeat any recovery thereon (Crawford v. West Side Bank, 100 N. Y. 50); and, though there was no presumption that the alteration, which was plainly apparent, was made after it was issued (Maybee v. Sniffen, 2 E. D. Smith1), it remained that, after impeaching testimony for the defendant, the burden of proving that the alteration was made before the check was issued was upon the plaintiff, he asserting the execution by the defendant of the particular instrument sued upon in the form in which it was produced. Farmers’ L. & T. Co. v. Siefke, 144 N. Y. 354.
¶4Eor the defendant, it appeared from his own testimony and that of Dimmock, an apparently wholly disinterested witness, that, at the time when the check was given to Beed, the payee, it bore date as of September 7, 1903; and as against this the plaintiff contented himself by showing no more than that, when he received the check from Beed on September 3, 1903, the date had been altered to that day. An alteration in the date was plainly apparent and, obviously, the fact alone that the alteration had taken place before the plaintiff received the check in no wise challenged the accuracy of the testimony of the defendant’s witnesses that the alteration was made after the check was issued to Beed.
¶5The question involved upon the trial was simply whether *328the defendant had issued the instrument sued upon, as the plaintiff asserted he did; and, since there was no presumption that the alteration had occurred after the check was issued, the fact of the alteration, however apparent, did not suffice to raise any question as to whether the plaintiff was a “ holder in due course ” within the meaning of the Negotiable Instrur ments Law (Laws of 1897, chap. 612, § 91), in that he had notice of some infirmity in the instrument.
¶6The order should be affirmed, with costs.
¶7Order affirmed, with costs.