
    Charles J. Bacon, Respondent, v. Chester Chapman, Appellant.
    
      Statute of limitations — what allegation sufficiently sets it up —non-payment must he alleged in an action on a contract for the payment of money.
    
    An allegation contained in the answer interposed in an action to recover for medical services rendered by the plaintiff to the defendant, averring that “ said services were rendered and said medicines were furnished more than six years prior to the commencement of this action,” is a sufficient plea of the Statute of Limitations, as the presumption is that compensation for the services became due immediately upon their performance.
    Williams, J., dissented.
    The following allegation contained in the answer interposed in such an action, “ For a further answer, set-off, defense and counterclaim the defendant alleges that between the 1st day of May, 1889, and the 1st' day of Sept., 1896, the [ defendant performed work, labor and services for the plaintiff at his special instance and request to the amount of §49.00; that said services were reasonably worth the sum of §49.00,” is demurrable in that it does not allege non-payment of the debt set out therein.
    Appeal by the defendant, Chester Chapman, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 27th day of October, 1902, upon the decision of the court, rendered after a trial at the Oneida Special Term, sustaining the plaintiff’s demurrer to the 4th and 5th paragraphs set up in the defendant’s answer, and also from an order entered in said clerk’s office on the 7th day of January, 1903, amending said interlocutory judgment.
    
      F. D. Gardner, for the appellant.
    Johnson, Goville do Moore, for the respondent.
   Spring, J.:

The action is to recover for medical services alleged to have been rendered to the defendant by the plaintiff. The answer admits the rendition óf the services, but denies that they were of. the value claimed in the complaint, and contains also a general denial. The 4th count or paragraph is as follows:

“ IY. The defendant for a further answer, set-off, defense and counter to said complaint alleges that if said services were rendered as alleged in said complaint, said servicés were rendered and said medicines were furnished more than six years prior to the commencement of this action, and the defendant is not liable for the same on account of the statute of limitations.”

The demurrer to this separate. defense was sustained, as we conclude, erroneously. The answer alleges that the services were rendered more than six years prior to the commencement of the action. Presumptively compensation for the sérvices was due immediately upon their performance. An allegation in a complaint that services of stated kind and value were rendered would not be amenable to the criticism that there was no allegation that they were not due, for the presumption that payment was immediately to follow performance would obtain.

The authorities cited by the counsel for the respondent do not uphold the decision. In Eno v. Diefendorf (102 N. Y. 720) the answer did not allege that the six years had elapsed before the comvmenoement of the action, and it was held bad. The action may have been pending for a year for aught that appears, and it is essential that the full period of limitation intervene the maturity of the claim sued on and the commencement of the action for its enforcement, and that fact must be alleged in setting up the defénse.

In Mallory v. Lamphear (8 How. Pr. 491) the action was on a due bill and the answer in setting up the Statute of Limitations alleged that six years elapsed between the making of the bill and. the commencement of the action. The court held .the allegation bad on the ground that the due bill became effective from- delivery, not from its date. The purpose óf añ allegation is to apprise the party of the precise cause of action or defense sought to be charged by it. The present averment meets that rule distinctly. In pleading a cause of action or defense allowed by statute if is not absolately essential to follow the language of the statute itself but the gist of it. Only the facts which bring the pleader within its purview need be alleged. The complaint itself shows when the services were rendered, and it is apparent that more than six years elapsed between their rendition and the commencement of the action, and the plaintiff anticipated the defense referred to by affirmative allegations of an acknowledgment of the debt by the defendant.

The 5th paragraph or count is as follows:

“ V. For a further answer, set-off, defense and counterclaim the defendant alleges that between the 1st day of May, 1889, and the 1st day of Sept., 1896, the defendant performed work, labor and services for the plaintiff at his special instance and request to the amount of $49.00that said services were reasonably worth the sum of $49.00.”

The court below held this allegation bad, we assume on the ground that there was no averment of non-payment of the debt set out. We concur with the conclusion reached. It is the essence of a pleading on contract to show the breach upon which the liability arises. The breach in a contract for the payment of money is the failure to pay, and the non-payment must be alleged the same as any other fact rendering the defendant liable in failing to fulfill his agreement. This is true irrespective of the rule that non-payment in our practice is an affirmative defense. (Lent v. N. Y. & M. R. Co., 130 N. Y. 504, 510; National Bank of Deposit v. Rogers, 166 id. 380, 387; Newton v. Browne, 6 Misc. Rep. 603; 56 N. Y. St. Repr. 605; Krower v. Reynolds, 99 N. Y. 245.)

As is urged in the first case cited, unless this rule is to obtain, the complaint might allege a cause of action for the full sum of the original indebtedness, and if verified a judgment be entered therefor if no answer were interposed although it had been largely reduced by payment. The authorities are fully reviewed in that case and the general rule as to the necessity of alleging affirmatively a breach of the contract is held to be applicable where the breach is non-payment of the debt, the same as where damages are sought to be recovered for any other failure of a party to live up to his agreement.

The original interlocutory judgment in this case directed judgment to be rendered without giving leave to the defendant to plead over. After the appeal this was amended upon notice by allowing the defendant, within the requisite time, to interpose an amended answer. This was for the benefit of the defendant and conformed to the usual practice.

The interlocutory judgment, with accompanying order, should be reversed wherein it holds the defense of the Statute of Limitations, is not properly pleaded, and should be affirmed as to the holding of the insufficiency of the counterclaim set fourth in the 5th paragraph of the answer, with leave to the defendant to plead over Upon payment of the costs of the demurrer, and the order amending the interlocutory judgment should be affirmed, costs of. this appeal allowed to neither party-.

All concurred, except Williams, J., who voted for the affirmance, of the entire judgment and orders.

Interlocutory judgment and accompanying order reversed, in so-far as it holds that the defense of the Statute of Limitations is not properly pleaded, and affirmed as to the holding of the insufficiency of the counterclaim set forth in the 5th paragraph of the- answer with leave to defendant to plead over upon payment of the costs of the demurrer, and order amending interlocutory judgment affirmed* No costs of this appeal allowed to either party.  