
    Moses Smith, Respondent, v. The State Bank, Appellant.
    (Supreme Court, Appellate Term,
    January, 1909.)
    Guaranty — Remedies of guarantee—Pleading — Complaint — Necessity of alleging nonpayment.
    In an action founded upon the breach of the defendant’s contract to pay upon demand, the plaintiff must affirmatively allege and prove nonpayment; and it is error for the court to instruct the jury that the burden of proof of payment is on the defendant.
    Appeal by the defendant from a judgment in .favor of the plaintiff, entered in the City Court of the city of New York, upon the verdict of a jury.
    Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for appellant.
    Samuel Fingerhut, for respondent.
   Bischoff, J.

The cause of action was founded upon a breach of the defendant’s contract to pay upon demand, and without an averment of demand and nonpayment the complaint would have been clearly insufficient in substance. Under these circumstances nonpayment was a constituent of the right of recovery and the plaintiff had the burden of proof (Cochran v. Reich, 91 Hun, 440; Lent v. New York & Mass. R. Co., 130 N. Y. 504; Trenkmann v. Schneider, 23 Misc. Rep. 336), the affirmative allegation of payment in such a case serving only as notice that the issue of nonpayment was actually to be raised. Lent v. New York & Mass. R. Co., supra.

In view of the close question involved in this issue, depending upon the identity of the person to whom payment was made, the court’s instruction that the defendant had the burden of proof, over exception duly taken, was error which requires a reversal of the judgment.

Gildersleeve and Guy, JJ., concur.

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