In re Neil's Estate

she paid and her brother received $4 on the rent for December, 1884/ on the understanding that the balance would be payable, pursuant to their agreement, out of her estate at her death. In the account of the administrator his claim was stated as being for rent of rooms, 184 months, at $7.50 a month, amounting to $1,380, with a credit of $445, leaving $935; and this statement was one of the allegations covered by his general verification. The objections filed by the next of kin specified as grounds of objection that the claim had been paid, and that it was barred by the statute of limitations. On the trial before the referee the administrator offered himself as a witness in his own behalf, and when his counsel attempted to examine him as to payments made by the intestate to him objection was made that he was an incompetent witness as to such matters, because of the provisions of section 829, Code Civ. Proe., and this objection was properly sustained, and the evidence was excluded. The administrator, by his counsel, then put upon the record a waiver of any claim in excess of $935, and subsequently filed a formal proof of claim, in which payments sufficient to reduce his claim to that amount were admitted, which was verified by him to the effect that no further payments had been made. ¡No further affirmative proof of nonpayment was offered by the claimant, and the contestants did not offer any evidence of payment in support of their objection. On this evidence the learned referee reported against the claim, feeling constrained so to do because of decisions recited in his opinion. These cases were all actions in the supreme court, and, like Lent v. Railway Co., 130 N. Y. 504 , 29 N. E. 988 , which was the leading authority relied on, most of them concerned questions of pleading arising on demurrers. A case so nearly like the one at bar as to be controlling is Lerche v. Brasher, 104 N. Y. 157 , 10 N. E. 58 , and leads to an entirely different result. That was an action against an administrator with the will annexed to recover for services rendered his testator. The services and their value were proved, and the administrator was improperly allowed to testify as to nonpayment. A judgment was rendered, which was set aside by an order of the trial court, affirmed by the general term because of the error in receiving this evidence, and the appeal was from this order. The order was reversed, the court, Finch, J., writing, saying: “But, while the objection was a good one, the evidence was wholly immaterial. The plaintiff was not required to prove the negative, and payment was an affirmative defense, the burden of establishing which was on the defendant.” ¡No authority was cited to support this proposition, but this was not because authorities did not exist in great abundance. Where a contract obligation of a defendant or of his legal representative to pay a sum of money is shown, it has long been the rule that facts of discharge by payment or release are the subjects of affirmative defenses and affirmative proof on the part of the defendant. McKyring v. Bull, 16 N. Y. 297 , 69 Am. Dec. 696 . There are, of course, cases where nonpayment is a fact forming an essential part of a cause of action, and in such cases the negative fact must affirmatively be shown. Such a case was Knapp v. Roche, 94 N. Y. 329 , cited

by the contestant, where the action was against an officer of a hank for damages for negligently loaning the moneys of the bank to a third person, who failed to pay, and the bank was thus damaged. Another was Ball & Wood Co. v. Clark & Sons Co., 31 App. Div. 356 , 52 N. Y. Supp. 443 , where a mechanic’s lienor sought to establish his lien against the owner, without proof that anything was due from the owner to the original contractor. See, also, Quin v. Lloyd, 41 N. Y. 349 . But in a case where an executor was sued for the value of board and lodging furnished to his testator it was determined by the appellate division of" this department that the plaintiff was not required to prove nonpayment as a condition for his recovery, and the cases cited by the contestant were by name cited in support of the ruling. Hicks-Alixanian v. Walton, 14 App. Div. 199 , 43 N. Y. Supp. 541 . See, also, In re Rowell, 45 App. Div. 323 , 61 N. Y. Supp. 382 ; In re Macomber’s Estate (Sur.) 11 N. Y. Supp. 198 , affirmed sub nom.; In re Powers, 124 N. Y. 361 , 26 N. E. 940 . The fact that by the terms of the contract the intestate was required to pay either at or before her decease does not change the rule. The obligation was to pay a fixed rent, and in every case of this kind only the balance unpaid can be recovered. The defense of the statute of limitations cannot prevail, because the balance unpaid did not become due until the death of the intestate. The conclusions of the referee disallowing the claim of the administrator will be reversed, and the claim allowed. In all other respects the report is confirmed. Costs of the administrator will he paid out of the estate.

Decreed accordingly.