American Slicing Mach. Co. v. Kuchukian — 147 N.Y.S. 352

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p. 352

AMERICAN SLICING MACH. CO. v. KUCHUKIAN.

(Supreme Court, Appellate Term, First Department.

May 7, 1914.)

Headnote

Payment (§ 63^[1] )—Pleading and Issues—Affirmative Defense.

In an action for the balance of the price of an article sold and delivered, defendant answered by general denial, and affirmatively pleaded that the sale was induced by fraudulent representations. Held, that payment was an affirmative defense, which should be set forth and pleaded, and plaintiff was not required to prove nonpayment.

[Ed. Note.—For other cases, see Payment, Cent. Dig. §§ 152-161; Dec. Dig. § 63.*] . .

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by the American Slicing Machine Company against Alfred P. Kuchukian. Judgment for defendant, and plaintiff appeals.

Reversed, and new trial ordered.

Argued April term, 1914, before GUY, PAGE, and WHITAKER, JJ. . ,

Francis B. Mullin & Bro., of Brooklyn, for appellant.

This is an appeal by the plaintiff from a judgment rendered.in favor of the defendant for costs upon a motioti made by the defendant at the close of the plaintiff’s case upon the ground Sat the plaintiff failed to prove nonpayment of the indebtedness sued

p. 353

for. The complaint alleged a sale and delivery by plaintiff to the defendant of a slicing machine, that the agreed price of said machine was $110, and that no part of such price had been paid, -except the sum of $10, and demanded judgment for $100, balance. The answer was in substance a general denial, and an affirmative defense that the sale was induced by fraudulent representations.

Under the pleadings, payment was an affirmative defense, which must be set forth and pleaded, and proof of nonpayment on the part of the plaintiff was not required. Acharan v. Samuel Bros., 144 App. Div. 182 , 128 N. Y. Supp. 943 . Moreover, a representative of the plaintiff testified that, so far as he knew, nothing had been paid- upon the indebtedness, except the sum of $10, and that he would have known if other payments had been made. This was sufficient to require proof of payment on the part of the defendant, if any was made.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.