Hartenstein v. Vesta Manufacturing Corp.

136 Misc. 212, 239 N.Y.S. 331, 1929 N.Y. Misc. LEXIS 1071

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 11, 1929
• Status: Published

Opinion

Per Curiam.

Judgment unanimously reversed upon the law, and new trial granted, with thirty dollars costs to appellant to abide the event.

The action was upon a promissory note indorsed by the defendant., With its answer the defendant served an affidavit in conformity with section 368 of the Civil Practice Act, stating that the defendant did not receive due notice of presentment of the note nor was demand made upon it for payment thereof. The certificate of the notary therefore, was not competent. (Civ. Prac. Act, § 368.) Therefore, the burden was upon the plaintiff of proving presentment by common-law evidence. (Smith v. Leiman, 133 N. Y. Supp. 1001; 2 Daniel Neg. Inst. § 961.) This the plaintiff failed to do.

All concur; present, Cropsey, MacCrate and Lewis, JJ.