Appellate Terms of the Supreme Court of New York, 1912

Averbuck v. Becher

Appellate Terms of the Supreme Court of New York · Decided May 9, 1912 · Gerard

134 N.Y.S. 1112 (New York Supplement)

Counsel

Joseph Krinsky, of New York City, for appellant., J. Carl Becher, of New York City, for respondent.

Opinion of the Court

GERARD, J.

Action on a promissory note. The defendant set up an affirmative defense that an agreement was entered into by plaintiff to exchange the note on which he sued for two notes, and to release the maker and indorser of the note on which he sued. The learned court below charged the jury that the plaintiff—

“must satisfy you by a fair preponderance of the evidence that this note for $150 was never paid, and that no agreement had been made that it should be paid by the acceptance of these two notes.”

This, of course, was error. The burden was on defendant to prove the affirmative defense.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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