H. Rubenstein Co. v. Tucker

While every holder of a negotiable instrument is deemed prima fade to be a holder in due course (Neg. Inst. Law, § 98), if it'appears that he- did not give value for the instrument such presumption would be overcome (Neg. Inst. Law, § 91). The burden of proof as to consideration has been held to be on the plaintiff (Hoffay v. Hershenstein, 232 App. Div. 149), although the defendant is required to plead lack of consideration affirmatively (Abrahamson v. Steele, 176 App. Div. 865). As the complaint failed to show how plaintiff obtained the instrument, the court below, in its discretion, had the right to order the particulars requested, in order to prevent surprise. However, the plaintiff should have been afforded an opportunity to furnish the particulars.

Order affirmed, with ten dollars costs, unless within five days after service of order entered hereon appellant furnishes the particulars. Upon compliance with condition order reversed and motion denied.

All concur; present, Levy, Callahan and Untermyer, JJ.