240 A.D. 786 | N.Y. App. Div. | 1933
Judgment reversed on the law and a new trial granted, costs to appellant to abide the event. We are of opinion that the court erred in submitting this case to the jury upon the theory that the burden of proof was upon the defendant to establish by a fair preponderance of the evidence that the plaintiff was not a member in good standing in the defendant association at the time of his injury. The issue here, under the law of the case, was whether or not the defendant had mailed to the plaintiff a notice of assessment forty-five days prior to the 18th day of June, 1931, which assessment, eoncededly, was not paid within the time prescribed by the notice. The court charged the jury that if it found that the probabilities in respect to the mailing of notice and the non-mailing of notice were equally balanced, then under the rule, the defendant having the burden of proving that the notice was given, the plaintiff must prevail. Membership was part of plaintiff’s case, and a condition precedent to a recovery. Plaintiff’s testimony and the certificate of membership established this prima facie case. The prima facie case, however, was overcome by defendant’s proof, if credited, and the burden of proof was upon the plaintiff, and never shifted. (F. L. & T. Co. v. Siefke, 144 N. Y. 354; Murray v. Narwood, 192 id. 172; Lobdell v. Village of Northville, 151 App. Div. 384; Griffith v. American Bridge Co., 157 id. 264, 268; Lynch v. Figge, 200 id. 92.) Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.