I dissent. The plaintiff placed in evidence the notes upon which he is suing. They are regular upon their face. He further proved that he purchased them for an adequate consideration before maturity and placed in evidence the check with which he paid for them. The defendant then attempted to prove fraud between two prior parties to the instruments without offering a scintilla of evidence to connect it with the plaintiff, to charge him with notice of it or to impeach his position as a holder in due course. The learned trial justice refused to receive the evidence until the defendant should first pro*416duce some evidence that the plaintiff had knowledge of the alleged fraud. Though it was within the power of the court to receive such evidence subject to being later connected with the plaintiff and subject to a motion to strike it out in case it was not so connected, I am of the opinion that the trial justice was within his discretion in refusing to receive it until at least a question of fact was raised as to the plaintiff’s status as a bona fide holder. The plaintiff, in my opinion, fully sustained the burden placed upon him by section 98 of the Negotiable Instruments Law of proving that he acquired title as a holder in due course. It was not necessary for him to show that he had no knowledge of any specific fraud. While the ultimate burden of proof was upon him to establish his lack of knowledge of any fraud proved, the burden of going forward with the evidence of infirmity in the plaintiff’s title was upon-the defendant. The defendant refused to produce any evidence to connect his alleged fraud with the plaintiff and until such connection was established or at least an issue of fact raised the evidence was properly excluded. Eisenberg v. Lefkowitz, 142 App. Div. 569. It is also significant that the fraud of which, the defendant was attempting to give evidence was his own fraudulent transfer as a preference. Under these circumstances I think the learned trial justice was justified in holding the defendant to the strict letter of the law and in not. allowing him more latitude than he was entitled to.
The judgment appealed from should be affirmed, with costs.
Judgment reversed and new trial ordered, with costs to appellants to abide event.