Hayes v. Mestaniz 61 N.Y. St. Rptr. 729

Freedman, J.

—The complaint is upon a promissory note made by the defendant to the order of the plaintiff. Upon the trial, the defendant at once assumed the burden of establishing lack of consideration for the note sued upon. At the close of the evidence given by the defendant, both parties moved for the direction of a verdict. Neither claimed that there was any question of fact for the jury. The evidence not only failed to establish lack of consideration, but showed a sufficient consideration; namely, the surrender of a prior note, upon which other parties were liable, even if the defendant, who had indorsed the same, was not. This prior note came from the possession of the defendant, and was put in evidence by him. Under the circumstances, the verdict was properly directed for the plaintiff. The judgment and order should be affirmed, with costs.