BIJUR, J.[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] 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.
The judgment must be reversed, and new trial granted, with costs to appellant to abide the event. All concur.