
    Erastus Crawford, Respondent, v. Thomas M. Tyng, Appellant.
    (New York Common Pleas
    General Term,
    November, 1894.)
    An allegation of nonpayment in a complaint in an action upon the defendant’s own contract to pay is not put in issue by a general denial in the answer.
    A complaint alleged the loan of money which the defendant promised in writing to repay on a certain date, and that the same had not been paid. The answer admitted the advance of the sums mentioned, to be repaid on said date, averred that they have been repaid by services rendered, and denied each and every allegation not specifically admitted. Held, that there was no admission of the written promise alleged in the complaint, and that such allegation was put in issue by the general denial. A payment made by a third person at the request of a debtor inures to the benefit of the latter.
    Appeal from the judgment of the General Term of the City Court.of ¡New York, affirming a judgment in favor of the plaintiff.
    
      T. M. Tyng, appellant, in person.
    
      Jacob Fromme, for respondent.
   Daly, Ch. J.

This is an appeal from an affirmance by the City Court, General Term, of a judgment in favor of plaintiff for $1,000 with interest from October 5, 1888, and costs-The complaint was for money loaned and advanced in divers sums, amounting to $1,000, on and previous to July 3, 1888, which, it was alleged, defendant on that day promised m writing to repay on the 5th day of October, 1888, and which defendant failed to pay. The answer admitted the advance of sums of. money, amounting to $1,000, to he repaid on October 5, 1888, and averred that since that date it had heen repaid by professional services rendered defendant, at his request, by plaintiff, which were worth $3,000, upon which $1,250 had been paid; and defendant counterclaimed $1,750. The answer also contained a denial of each and every averment in the complaint except such as were specifically admitted.

As there was no specific.admission of the allegation of nonpayment, the defendant claims that that fact was pnt in issue by the denial, and that plaintiff was bound to prove it; and cites in support of his contention Knapp v. Roche, 94 N. Y. 329, and Lent v. N. Y. & M. R. Co., 130 id. 504. In the first case cited the allegation of nonpayment was in reference to the contract of a third party, whose default was alleged as the ground of defendant’s liability; and so it was held that under a general denial nonpayment must be proved. In the second case cited the nonpayment was alleged of defendant’s own contract to pay; and while such allegation was held to be essential to the statement of a cause of action, the well-settled rule that payment is an affirmative defense was considered, and it was suggested that while the averment of nonpayment was an issuable fact, a general denial “ does not put that fact in issue, and to that extent the rule that payment must be pleaded must be deemed to modify the rule of pleading under the Code in reference to a general denial.”

As the allegation of nonpayment was, therefore, not put in issue by defendant’s denial, it was not error for the court to deny the motion to dismiss the complaint on the ground that the plaintiff was bound to prove nonpayment of the loan. But the denial in the answer put in issue the fact of a written promise, as averred in the complaint; for the admission of an advance of sums of money to be repaid on the 5th of October, 1888, was not a specific admission" of a promise in writing made on the 3d day of July, 1888, to that effect, and the plaintiff should have been required to make proof of his written instrument. The denial of the motion to dismiss the complaint when the plaintiff rested without such proof was, therefore, error.

The injurious effect of the ruling to the defendant is unquestionable, for when the only written promise shown to have been executed by him to plaintiff was produced by himself, and payment of the identical sum therein mentioned, with interest, to plaintiff was established, the latter claimed to recover for a different loan, not evidenced by any writing whatever, and in fact not proved upon the trial.

It is disputed by plaintiff that the payment relied upon by defendant inured to his benefit, because it was made by a third party not in privity with him. But the written acknowledgment by plaintiff of such payment recites that it was made by defendant’s request, and a payment so made inures to his. benefit. Madison Square Bank v. Pierce, 137 N. Y. 444-448. The instrument executed by defendant reciting his indebtedness and promising to pay the loan was an assignment to plaintiff, as collateral security, of a mortgage made by one Green to defendant, and this mortgage plaintiff afterwards assigned to one McGrath in consideration of the sum of $1,163.17 paid to him, tho assignment stating that it was made at the request of the mortgagee, defendant, and the mortgagor, Green. It appears, therefore, that the debt which was evidenced by the writing has been repaid.

As the payment in question and the assignment of the mortgage were made after the issue was joined in the action the defense of payment by that transaction was not set up in the answer, but the evidence was received without objection.

The judgment should be reversed and a new trial ordered, with costs of the appeals and the former trial to appellant to abide the event.

Bisciioff and Pryoe, JJ., concur.

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