Opinion by
On Oсtober 13, 1959 Anna Danovitz, through her counsel, petitioned Court of Common Pleas No. 1 of Philadelphia County for leave to enter a judgment in the amount of $10,000, with interest, against A. Portnoy, her brother, upon a judgment note admittedly executed by Portnoy which contained a warrant of attorney authorizing confession of judgment. Although undated, the note was executed in May, 1931, apрroximately 28 years prior to the presentation of this petition. Attached to the petition, in addition to the note, was an affidavit by Mrs. Danovitz that Portnoy had executed the note, that, notwithstanding previous demands, no part of the note had been paid, that the note was in default and that the entire balance, with interest, was due.
*601 In accordance with Rule 907 оf the Rules of the Court of Common Pleas of Philadelphia County, the court granted a rule upon Portnoy to show cause why judgment should not be entered on the note. Portnoy’s answer admittеd execution of the note but averred that the note was either, presumptively or actually, paid. After depositions were taken and argument had on the petition, answer аnd depositions, the court below made the rule absolute and directed the entry of judgment. From the entry of such judgment this appeal was taken.
Portnoy’s contentions are three-fоld: (1) that Mrs. Danovitz is guilty of laches and her right to enter judgment is barred by her unexplained failure to proceed upon the note during the twenty-eight year period; (2) that Mrs. Danovitz failed to sustain her burden of proof to overcome the presumption that this note containing a warrant of attorney more than twenty years old has been paid; (3) that the court below was unwarranted in finding that the testimony of one party was worthy of belief, despite its contradiction by the testimony of the other party, when such testimony was taken by depositions outside the presence of the hearing judge.
The defense of laches — an affirmative defense — was not raised in the pleadings nor at any time in the court below. Laches, not having been raised in the court below, cannot now be considered by this Court. In
Gross v. Belmont Laboratories, Inc.,
*602
Mrs. Danovitz had the burden of establishing a prima facie cаse in favor of the note and the warrant therein. Unlike a rule to open judgment, a petition seeking leave to enter judgment upon a note containing a warrant of attornеy over twenty years in age requires that the petitioner submit proof sufficient in quantity and quality to overcome the presumption of payment which the lapse of time raises. The Suрerior Court in
Keiber v. Keiber,
Judge Hagan of the court below stated: “On the bаsis of the above quoted language it is clear that if plaintiff made out a prima facie case of a demand of payment by the plaintiff and an acknowledgment of the dеbt by defendant, plaintiff was entitled to have her *603 rule made absolute, leaving any substantial dispute as to payment to be settled by a rule to open. In examining plaintiff’s depositions we find that plaintiff did make out such a prima facie ease. Thus, plaintiff, after testifying that defendant executed tbe note in question after having received certain insurance proceeds, was asked: ‘Q. Has be [defendant] ever paid it back? A. No, be promised to, but be never did. Q. When did be promise you? A. He has been promising all along’ (N.T. 6).
“Again, at page 28 of tbe notes of testimony, plaintiff was asked: ‘Q. When was tbe last time, prior to tbe start of this suit, that you demanded payment of that $10,000 from your brother, Abe? A. I have been asking him all tbe time, but be never made аny effort to pay. I figured I would wait a while because be gave me tbe other money, and I figured I would wait. Q. When did you last ask him before this suit began? A. I have been asking him a long time. I don’t know what you mean. Q. You mean that since 1931, at tbe •time you delivered this money to your brother, from then up to tbe present time, you have been asking him all along for this money? A. Yes, be made promises and promises, but be never kept bis promises and so I started this suit.’
“Since plaintiff in her own case made out a prima facie case sufficient to rebut tbe presumption of paymеnt, she was entitled to have her rule made absolute and it is not necessary to examine defendant’s testimony. When we do so, however, we find that defendant’s testimony was quite confused and confusing. Defendant appeared at times to be contending that be received no consideration for tbe note in question. At other points in bis testimony defendant appеared to be relying upon a compromise settlement of all of plaintiff’s claims against him, including tbe claim upon *604 the note which is the subject matter of this case (see N. T. 58, 99 and 102). Defendant also testified that from 1931 until the present action was instituted plaintiff never made any demand from him, either with respect to the note which is the subject matter of this case or any оther notes which he executed (N. T. 60-61). Later in his testimony, however, defendant admitted that not only was demand made, but that part payment was actually made by him (although defendant contеnded that the part payment was made with respect to other notes, not the one here in issue) (N. T. 68, 76).
“From a review of the testimony of both parties, we think it clear that plaintiff madе out a prima facie case of non-payment sufficient to rebut the presumption of payment, that any substantial dispute as to payment should be determined upon a rule to open the judgment, and that plaintiff’s rule for leave to enter judgment was properly made absolute.”
Our own independent review of the testimony taken by way of depositions makеs evident that Mrs. Danovitz did make out a prima facie case of non-payment sufficient in quantity and quality to rebut the presumption of payment and to justify the grant of leave by the cоurt to enter a judgment upon this note.
Lastly, while it is true that Judge Hagan neither saw nor heard the witnesses who testified upon depositions, it was clearly within his authority to pass upon such testimony. Aрpellant urges
Gaston Estate,
Our ruling dоes not determine the essential validity of this judgment. Portnoy will have the opportunity upon a rule to open judgment, if he so chooses, to have the validity of the judgment, the fact of its payment -or non-payment, etc., established. Mrs. Danovitz, by her testimony, has satisfied the requirement of Rule 907 under which this proceeding was instituted.
Judgment affirmed.