Gilbert E. Loper, Respondent, v. Lewis Nixon, Appellant

Gilbert E. Loper, Respondent, v. Lewis Nixon, Appellant. On the last trial [See 174 App. Div. 891] the facts regarding the negotiation of the note were shown. On this trial they were not. The note with the indorsements, offered in evidence, created the presumption not only that the note was • made for value, but that the plaintiff was a holder in due course. The evidence of the defendant destroyed the presumption that the note was given for value, but not the presumption that the plaintiff was a holder in due course unless it also showed that Schroeder negotiated it in breach of faith or under such circumstances as amounted to a fraud. (Neg. Inst. Law, § 94.) The evidence of defendant amounted only to the fact that Schroeder, having told the defendant that he had arranged for the discount of the note in a New Jersey bank, was given the note with instructions not to hawk it about nor offer it in New York, but to discount it or have it discounted and bring the proceeds to defendant. There is no evidence of what Schroeder did except that he did not account for the proceeds to defendant. This breach of duty is not evidence that the note was discounted in breach of faith, for it was a duty which arose subsequent to the discount. The evidence offered by defendant did not tend to show that the title of Schroeder was defective within the meaning of section 94 of the Negotiable Instruments Law, and, therefore, the presumption that plaintiff was a holder in due course was not destroyed, and a direction of the verdict for plaintiff was required by the state of the evidence when defendant rested. Judgment affirmed, with costs. Consol. Laws, chap. 38 (Laws of 1909, chap. 43), § 94.— [Rep. [MAJORITY] Jenks, P. J., Thomas, Stapleton, Mills and Blaekmar, JJ., concurred.