H. Rubenstein Co. v. Tucker

Appellate Terms of the Supreme Court of New York

H. Rubenstein Co. v. Tucker

142 Misc. 626, 255 N.Y.S. 211, 1932 N.Y. Misc. LEXIS 1339

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 5, 1932

StatusPublished

This text of 142 Misc. 626 (H. Rubenstein Co. v. Tucker) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

H. Rubenstein Co. v. Tucker, 142 Misc. 626, 255 N.Y.S. 211, 1932 N.Y. Misc. LEXIS 1339 (N.Y. Ct. App. 1932).

Pincite

Opinion

Per Curiam.

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.

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Per Curiam.

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.

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Bluebook (online)

142 Misc. 626, 255 N.Y.S. 211, 1932 N.Y. Misc. LEXIS 1339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-rubenstein-co-v-tucker-nyappterm-1932.

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