On appeal from a judgment of the District Court of the city of Bayonne.
For the appellant, Rosen & Rosen (James Rosen, of counsel).
For the respondent, Dembe & Dembe (Harry B. Dembe, of counsel).
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The respondent bank sued upon a promissory note made by Halpern to the order of Feldman, and endorsed
by the latter and Hiller. It discounted the note before maturity for Feldman, and pleaded that it was a holder in due course for value. Hiller was concededly an accommodation endorser. A jury was empaneled to try the issue, but Judge Melniker directed a verdict for the plaintiff. He also overruled Hiller's motion for a direction of a verdict in his favor; and these rulings are assigned for error.
The first insistence of appellant is that the endorsements purporting to be his and Feldman's, respectively, were not authenticated, and the cause of action pleaded was therefore not established -- citing Van Syckel v. Egg Harbor Coal and Lumber Co., 109 N.J.L. 604. This contention is frivolous.
Chapter 168 of the laws of 1914 (Pamph. L., p. 319), provides that, in a suit upon a negotiable instrument, the authenticity of any signature or endorsement thereon shall be deemed to be admitted, unless put in issue by the pleadings, and that, in courts in which the practice does not require the defendant to file a plea, the genuineness of such signature or endorsement shall be taken to be admitted, unless the party challenging its verity shall file with the court an affidavit stating that, to the best of his knowledge and belief, the signature or endorsement is not genuine. This statutory affidavit was not filed. Moreover, at plaintiff's demand, under section 61b of the act relating to District Courts (2 Comp. Stat.,p. 1971), as amended by chapter 336 of the laws of 1929 (Pamph. L., p. 758), appellant filed a specification of defenses; and therein he admitted the genuineness of the endorsements. It was therein also averred that he endorsed the note for the accommodation of Feldman, and, although there was a prior general denial, the sole specific defense interposed was that Feldman, who was primarily liable, in fact paid the note to plaintiff, and that the suit was instituted by the latter on behalf of Feldman, and for his benefit.
Thus there was an explicit admission of the genuineness of the endorsements that dispensed with the necessity of proof thereof; the authenticity of the signatures was not at issue. The prior general denial of "each and every allegation" of the state of demand was thus limited to exclude the allegations of the making and endorsement of the instrument by
the respective defendants. A general denial has little or no effect; it manifestly does not serve the statutory purpose. There is, in any event, imposed upon the plaintiff the burden of establishing his claim prima facie. Besser v. Krasny, 114 N.J.L. 146; Tricoli v. Tramonde, 95 Id. 363; Turner v. Wells, 64 Id. 269. But this burden does not exist as to a factual ingredient admitted by the defendant. It is one of the first ...