
    Marcial Acharan and Alfredo A. Pinillos, Appellants, v. Samuel Brothers (a Corporation), Respondent.
    First Department,
    April 21, 1911.
    Pleading — payment— when available under general denial.
    As a’ general rule payment is an affirmative defense and cannot be proven under a general denial. ; ■ .
    But where the plaintiff declares generally upon a balance due so as - to leave both sides of-the account open upon the general issue, the defendant may prove payment ¡under a general denial. If,' however; the plaintiff alleges a specific amount as originally due and admits partial payments thereon, a general denial puts in issue the original amount, but does not permit proof of payments thereon beyond the amount admitted in the complaint.
    Appeal by the plaintiffs, Marcial Acharan and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of January, 1911, upon the dismissal of the . complaint by direction of the court after a trial at the New York Trial Term.
    The plaintiff Acharan and one Jose Goicochea were copartners doing business under the firm name of Acharan, Goicochea & Co. Prior to the commencement of this action Jose Goicochea died, and the plaintiff Acharan and Alfredo A. Pinillos, as the legal- representative of said Jose Goicochea, deceased, and as trustee for his heirs and next of kin, have continued the business as aforesaid.
    
      Phanor J. Eder, for the appellants.
    
      Perry Allen, for the respondent.
   Scott, J.:

Plaintiffs appeal from a judgment entered upon a dismissal of the complaint at Trial Term. The action is for a balance claimed to be due upon a running account.- The complaint alleges that on June 1, 1906, an account was stated between the parties whereby it was found that the sum of $2,035.32 was due to the defendant. That thereafter business relations continued in the course of which defendant received moneys belonging to plaintiffs and plaintiffs paid out certain moneys on account of defendant and became entitled to certain credits, all of whiph amounted to $19,148.55, which sum has been recognized and acknowledged by defendant as credits properly allowable to plaintiffs. Then follow these allegations :

“VIII. That of said sum of $19,148.55, no part has been paid except the sum of $16,261.60, made up of divers items, more particularly set forth in the annexed account marked Schedule c B,’ which is made a part, of this complaint.

“IX. That the defendant is further entitled to credit to the amount of $306.29 for interest on balance of account existing from time to time in its'favor from said 1st day of June, 1906, and during the continuance of its business relations with the said firm of Acharan, Gbicochea & Co.

“X, That after deducting the aforesaid amounts of $2,035.32 mentioned in i Paragraph IV; $16,261.60 mentioned in Paragraph VIII, and| $306.29 mentioned in Paragraph IX, there remains a balance | due and owing by the defendant of $543.34, no part whereof has been paid, although due and duly demanded.” j

This Schedule “B,” referred to in paragraph VIII, consists of a fist of items aggregating the sum of $16,261.60. At the trial everything in the 1 answer was withdrawn except paragraph II thereof, which consisted of a general denial of paragraphs VIII and X of the complaint, which have been' quoted verbatim above. No evidence was offered by either party at the trial, and both moved for judgment. The court dismissed, the complaint, and this appeal presents' the sole question whether or not a general denial of allegations such as are contained in paragraphs VIII and X of-.the complaint puts the plaintiffs to their proof that no more has been paid than they have given defendant credit for. By its admissions the defendant concedes that the tofjal sum of $19,148.55 has from .time to time been due to plaintiffs. Its denials do not call that figure in question. The general rule is that payment is an affirmative defense and must be specially pleaded in order to be available, and cannot be proven under a general denial. In cases to which that rule is applicable it is incumbent upon the defendant not only to allege payment, but to assume the burden of proving if. The rule is hot, however, of universal application. The whole subject has recently been exhaustively discussed by two judges of the Court of Appeals in Conkling v. Weatherwax (181 N. Y. 258). In that case Judge Vann attempted to formulate certain rules ¡upon the subject, as fairly deducible from the adjudged cases] The second of these rules, which as it is claimed supports the judgment here appealed from, is- as follows : “When the complaint sets forth a balance, in excess of dll payments, owing lo the structure of the pleading, it is necessary for the plaintiff to prove the allegation as made and this leaves the amount of the payments open to the' defendant under a general denial.”

Judge Vann’s opinion, as a whole, does not seem tó have been concurred in by a majority of the court, and in some particulars was expressly dissented from. Chief Judge Cullen also wrote at length upon the general question, pointing out some of the apparent inconsistencies in our law upon the subject as it now stands. In the course of his opinion he said: “It seems the settled law of the State that, except where the complaint declares generally on an indebtedness, a general denial does not put in. issue the allegation of non-payment, but to admit proof of payment the defendant must plead payment.” Both of the learned judges cite Quin v. Lloyd (41 N. Y. 349), and White v. Smith (46 id. 418). In White v. Smith {supra) the complaint alleged that the plaintiffs had performed work for defendant to the amount of $541.90 and that there was due thereon “ after deducting all payments made by defendant to the plaintiffs thereon, $175.75.” The answer was a general denial. All that was held was that the complaint admitted the payment of $366.15, being the difference between $541.90 and $175.75, and that consequently the defendant was not called upon to prove payment up to that amount. The question was not involved whether the defendant could have proved larger payments under his plea. In Quin v. Lloyd (supra) the plaintiff' alleges employment at a certain rate per week, and that he had performed services thereunder whereby the defendant became indebted to plaintiff in a stated sum being the balance remaining due after sundry payments made by the defendant. The answer was a general denial. The court held that the case was an exception to the general rule that payments; either as an entire defense or in mitigation of damages, must be pleaded. The decision was based upon the form of the pleading. Judge Lott said: “There is no statement showing when the work commenced or ended or of the time employed, or from which it can be inferred. * * * The averment that there was an indebtedness by the defendant to the deceased, as c the balance remaining due after sundry payments made by defendant to said Bichard Quinn,’ and the denial of all the allegations in thej complaint as to the employment and indebtedness, involved an issue upon the facts above stated and denied, not only of the agreement and of the time which the deceased worked, but necessarily of the different payments made, so as to determine what id fact was the balance of the defendant’s

debt. That balance could not be ascertained without an inquiry as to" the amount of the payments, as well as the value of the work .performed.” Judge Woodruff, after remarking upon the phraseology of the complaint, said: “This allegation! think invited an issue upon the question whether a balance of $333.0!. was or was not due, and trie answer of the defendant put that allegation in issue.” McKyring v. Bull (16 N. Y. 297), commented on and distinguished by ¡Judge Lott in the case last cited, contains a learned and interesting discussion by Judge Selden as to what may and may not be proven under a general denial under our system of pleading. ¡The complaint alleged that plaintiff had performed work for the defendant to the value of $660 arid that There is now due to thijs plaintiff, .over and above all payments and offsets, on account ¿f said work, the sum of” $134. This was equivalent to an admission that the amount of the payments and offsets was $516. (White v. Smith, supra.) The answer ■ was a general denial, under which the defendant sought to prove payment as a defense and partial payments in mitigation of damages. The trial justice excluded the proof and the accuracy . of his ruling was the one question considered by ■ the Court of Appeals, which sustained the ruling, holding that payment was new matter to be pleaded ¡and proven in order to be availed of as a defense. It would seemj from a review of, these cases that the second rule enunciated by Judge Vann in Conkling v. Weatherwax (supra) is to be limited to cases in which-the plaintiff declares generally upon a balancé dué so as to leave both sides of the account open upon the" general issue, but that when there is, as ini the present case, the .allegation of a-specific amount as originally due and an admission of partial payments thereon, a general denial puts in issue the original amount due, but does n¿t permit of proof of payments thereon beyond the amount- admitted in the answer. If it is claimed that more has been paid! than is so admitted, payment must be alleged and proven by the defendant. The case then is precisely as if the plaintiff had admitted no payments at all and had simply declared upon the amount originally due, in which case the burden would clearly have rested upon the defendant to plead and prove payment. (Lerche v. Brasher, 104 N. Y. 157, 161.)

It follows, therefore, that the learned justice at Trial Term erred in dismissing the complaint. On the contrary, as the case stood, he should have directed judgment for the plaintiffs.

The judgment should he reversed and new trial granted, with costs to appellants to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Judgment reversed and new tria] ordered, with costs to appellants to abide event.  