18 N.Y.S. 140 | New York Court of Common Pleas | 1892
The plaintiff testified that he bought the note in suit the day after its date for the sum of $362.64, which was a discount at.a rate of interest greater than that allowed by law. He testified that he bought it from one Brower, who was acting as agent for one Klock, and that he knew nothing ef any other party. Brower was sworn, and testified that he received the note on the day of its date from Klock, with a request to sell it for him, which he did, receiving plaintiff’s check for it, and thereupon remitting his own •check to Klock, after deducting his fee of $2.50, and that Klock said nothing ■to him as to whether lie was acting as principal or agent. Plaintiff having rested his case, defendant went on the stand to prove his defense, but, under
The trial seems to have been conducted upon an erroneous view of the law as to the burden of proof. The defendant should have been allowed to prove his defense, and the burden would then have been cast upon the plaintiff to show that he had received the note for full value, and without notice of the equities between the original parties. By permitting the plaintiff to offer evidence of this in the first instance, and then shutting out proof of the defense until the defendant could show notice to the plaintiff, the burden of proof as to good faith was wrongfully shifted to the shoulders of the defendant, and he was deprived of the advantage to which he was entitled. Nickerson v. Ruger, 76 N. Y. 279. The defendant was not bound to prove notice to the plaintiff of the facts connected with the execution of the note. On the contrary, the burden was upon the plaintiff to show that he had no knowledge or notice of the transaction which affected the validity of the paper. Vosburgh v. Diefendorf, 119 N. Y. 357, 23 N. E. Rep. 801. Another injustice resulted to defendant from the erroneous ruling. He was precluded from offering proof of his defense of usury. He could not enter upon that defense until he had