
    Jacob A. Rice, Doing Business Under the Name of the Plasticloth Roofing Company, Appellant, v. Sam Kabak, Respondent.
    (Supreme Court, Appellate Term,
    May, 1911.)
    Money received—Presumptions and burden of proof.
    In an action for moneys had and received, the plaintiff need not prove non-payment, hut the burden is upon the defendant to allege . and prove payment.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, 'borough of Manhattan, eighth district, entered in favor of the defendant, after a trial before a justice without a jury.
    Barnett & Jablow (Ralph Barnett, of counsel), for appellant.
    Barnett E. Kopelman, for respondent.
   Seabury, J.

The pleadings in this case were oral. The complaint was one for money had and received and the answer was a general denial and payment. The plaintiff proved that he deposited with the defendant, between November 9,1910, and November 29, 1910, various sums aggregating in amount 'the sum of $395.50, and that he had received on account several sums amounting to the sum of $340.50. The amount claimed in the summons was $55. The justice of the lower court gave a judgment in favor of the defendant, and based his reasc-n therefor, primarily, upon the ground that the plaintiff had failed to sustain the burden of proof. Under the pleadings and the proof the burden of proving payment rested upon the defendant and not the plaintiff. Acharan v. Samuel Brothers, 144 App. Div. 182.

. The plaintiff was not required to prove a negative and establish the fact that he had not yet been repaid. The issue in dispute was a narrow one; and, as the court decided it upon the ground that the burden of proof was upon the plaintiff, the judgment must be reversed.

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

Lehman and Gerard, JJ., concur.

Judgment reversed.  