
    Sarah M. Hicks-Alixanian, Appellant, v. Patrick Walton, as Executor, etc., of James Hernon, Deceased, Respondent.
    
      A plaintiff need not prove that she has not been paid for board and lodging by ct-decedent debtor.
    
    In an action against an executor to recover the value of hoard and lodging alleged to have been furnished to his testator-, the court considered that, notwithstanding the fact that the plaintiff had alleged non-payment by the testator of the amount claimed, she was not bound to prove that fact, it not being material to the cause of action.
    
      Semble, that when allegations of non-payment or breach of contract are necessary elements of a cause of action, they must be proved.
    
      Appeal by ttie plaintiff, Sarah M. Hicks-Alixanian, 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 18th day of November, 1895, upon the dismissal of her complaint directed by the court after a trial at the New York Circuit.
    
      Henry Mayor, for the appellant.
    
      Charles Goeller, for the respondent.
   Patterson, J.:

The plaintiff, a boarding house keeper, sued to recover certain sums claimed to be owing her by the defendant’s testator. There are three causes of action set forth the complaint. The first is- for meals furnished to the defendant’s testator during a stated period of time; the second is for the value of the exclusive use of a room by him' in the plaintiff’s boarding house during a period mentioned in the complaint.; and the third is for the value of the partial use of a room by him in her house during another period of time also stated in the complaint. The reasonable value of the meals furnished and the value of the use of the rooms are alleged in the complaint, and in connection with each cause of action is the affirmative allegation that there was due and owing to the plaintiff from the defendant’s testator the amount claimed, and that the same had not been paid by the deceased. On the trial the justice presiding dismissed the complaint, apparently on the ground of a failure to prove non-payment by the defendant’s testator of either of the amounts claimed in the causes -of action respectively. The question involved in this .appeal is whether the allegations of the complaint, referring to nonpayment and to the breaches of contract, wrere material to the plaintiff’s causes of action. Whenever such allegations are material in support of an action they. must be proven. Lent v. N. Y. & M. R. Co. (130 N. Y. 504) and Cochran v. Reich (91 Hun, 440) state the rule generally that in actions on contract for the payment . of money, non-payment is a material element of the plaintiff’s cause of action, and must be proved under a general denial. It was ■decided, however, in Salisbury v. Stinson (10 Hun, 242) that payment being an affirmative defense, which must be pleaded to be made available, non-payment need not be alleged in the complaint nor proven on the trial.

In the Lent case what was held in Salisbury v. Stinson was certainly repudiated; but in the consideration of the Lent case the court overlooked, or did not have its attention directed to the fact, that the Court of Appeals had decided that, in an action similar to the one now before us, there was no necessity either of alleging or proving non-payment of the demand sued upon. (Lerche v. Brasher, 104 N. Y. 157.) In the last cited case the only question before the court was that of the competency of evidence given by the plaintiff to show non-payment of a claim for services by an attorney against the defendant’s testator. Evidence was admitted contrary to the provision of section 829 of the Code of Civil Procedure. The court declared that evidence incompetent and inadmissible, and held that it was error on the part of the trial court to permit it to be given, but, nevertheless, affirmed the judgment on the sole ground that in an action for the value of services against the representatives of a deceased person it was unnecessary to prove, as part of the plaintiff’s cause of action, that the services for the value of which the suit was brought had not been paid for by the decedent. That authority is conclusive upon the question involved in this appeal, and is not overruled by what was held in the Lent case.

The judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

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