
    Remegius Dose, as Administrator of the goods, chattels and credits of Herman Durselen, deceased, Appellant, v. Hirsch Brothers, Respondents.
    (Supreme Court, Appellate Term,
    December, 1909.)
    Payment — Payment as an issue—Presumptions and burden of proof — Burden of proof.
    In an action upon a contract for the payment of money, the fact of payment is a defense, to establish which the defendant has the burden of proof.
    Where, in an action by an administrator to recover money loaned by his intestate, the complaint, on defendants’ motion, is dismissed upon the sole ground that plaintiff had failed to establish nonpayment of the debt, the defendants cannot, for the purpose of sustaining the judgment on appeal, rely on the absence of evidence to show plaintiff’s appointment as administrator, where the point was not raised at the trial.
    Appeal hy the plaintiff from a judgment of the City Court of the city of Hew York dismissing the complaint.
    Charles L. Apfel (Alvin C. Cass of counsel), for appellant.
    Freyer, Hyman & Jarmulowsky (Adolph Freyer and Maurice Hyman of counsel), for respondents.
   Giegerich, J.

The plaintiff sues as administrator for the recovery of moneys alleged to have been lent by his intestate to the defendants. The complaint alleges the making of the loans and their non-payment. The answer contains a general denial and also sets up the defense of payment.

The plaintiff was unable to prove non-payment at the trial and at the conclusion of his case the defendants moved for a nonsuit, upon the ground that no cause of action had been made out, and the motion was granted. This was upon the theory that the burden was upon the plaintiff to prove non-payment, and this was error. In an action upon a contract for the payment of money, the fact of payment is a defense; and the burden is, consequently, upon the defendant to establish it. The precise point was decided in this department in the case of Hicks-Alixanian v. Walton, 14 App. Div. 199; and the same rule is approved by a majority of the judges of the Court of Appeals in Conkling v. Weatherwax. 181 N. Y. 258, although the point did not require decision in that case. In the case last cited the whole question is very exhaustively discussed and the rules established by the decided cases, both upon the form of the pleadings and upon the burden of proof, are fully considered; and upon these questions, so far as they relate to actions upon contract for the payment of money, a majority of the judges expressed their concurrence with the views of Chief Judge Cullen and sustain the case of Hicks-Alixanian v. Walton, supra, in which the point was actually decided. In view of the decision in the case last cited, we cannot follow the earlier case of Cochran v. Reich, 91 Hun 440, decided by the same court.

The respondents urge that the nonsuit was proper, because there is no evidence in the record of the plaintiff’s appointment as administrator. The point was not made at the trial and would doubtless have been remedied if it had. After procuring the dismissal of the complaint upon the single ground of the failure to establish nonpayment of the debt, the respondents cannot, even for the purpose of sustaining the judgment, rely upon other defects in the record, at any rate not without showing that they were inherent in the plaintiff’s case and could not have been obviated if the point had been made. Isham v. Davidson, 52 N. Y. 237; Pratt v. Dwelling H. M. F. Ins. Co., 130 id. 206, 220.

Goff and Lehman, JJ., concur.

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