For the decision of this appeal it is unnecessary to determine whether the phrases “ the original owner,” as used in section 288 of the Civil Practice Act, and “ an original owner,” as used in section 289 of the Civil Practice Act, apply only to the very first owner or assignor or may be extended to embrace owners or assignors intermediate in the chain of title. The original statute (Laws of 1920, chap. 91, amdg. Code Civ. Proc. § 872, subd. 5) seems to have been broad enough to cover the latter. (But see Wappler v. Woodbury Co., 206 App. Div. 452; Redfield v. National Petroleum Corp., 211 id. 152.)
Ordinarily a defendant is not entitled to examine the plaintiff before trial concerning the issues upon which the latter has the affirmative. (Lattimer v. Sun-Herald Corp., 208 App. Div. 503.)
The same rule applies to an original owner, however that phrase may be construed.
The burden rests upon the plaintiff here under the pleadings to show that he is a holder in due course. (Neg. Inst. Law, § 98; Vosburgh v. Diefendorf, 119 N. Y. 357; Weiss v. Goldberger, 209 App. Div. 615.) Since the affirmative is not with the defendant on this issue, the application was properly denied.
The order should be affirmed, with ten dollars costs and disbursements.
Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ. All concur, except Hubbs, P. J., who dissents in a memorandum and votes for affirmance.