The plaintiffs allege that the defendants indorsed and delivered to them the note in suit. The defendants deny that they indorsed and delivered it to the plaintiffs. The note is payable to their own order. They do not deny that they indorsed the note, nor do they set up any matter assailing the plaintiffs’ possession of the note. When a note is payable to the order of the maker, and indorsed by him, in legal effect it is indorsed to any person who may hold it; and the denial of the mere indorsement or delivery to the holder, is not the denial of a material averment. It may be assumed ■that the thing thus denied is not literally true, and yet the defendants would be liable. The mere possession of the note is sufficient to put the defendants to their defence, if any they *228have ; and as they have not denied any of the facts by which", possession could lawfully be acquired, they do not present any defence to the action.
The order at the special term must be affirmed, with $10 costs..
Present, Daly, P. J., Brady and Hilton, JJ.