Elias v. Whitney

50 Misc. 326, 98 N.Y.S. 667

Opinions

Truax, J.

The evidence showed that the check in suit had been changed before it reached the plaintiff, and that a mere inspection of the check showed such change. There is no evidence showing that the defendant authorized or assented to the alteration, but the appellant says that he is “ a holder in due course ” and not a party to the alteration, and that, under section 205 of the Negotiable Instruments Law, he may enforce payment on the check, according to its original tenor. Section 91 of the Negotiable Instruments Law states what constitutes a holder in due course. According to that section, a holder in due course is a holder who has taken an instrument that is complete and regular on its face. This instrument was not complete and regular on its face at the time plaintiff took it. As we have stated before, a mere inspection of the instrument showed its defect; and, therefore, under subdivision 41 of the Negotiable Instruments Law, plaintiff had notice of an infirmity in the instrument at the time he took it.

The order appealed from is affirmed, with costs.

Scott, J., concurs.