
    (75 Misc. Rep. 387.)
    IVES v. MALE.
    (Otsego County Court.
    January, 1912.)
    1. Payment (§ 64*)—Evidence—Presumptions and Burden oe Proof.
    Where the complaint against an administrator for the specific amount of one-half of the purchase price of a cow, which amount defendant’s intestate is alleged to have agreed to pay on taking back the animal, contains no allegation of nonpayment, plaintiff need not prove nonpayment to make out his case; the burden being on defendant to allege and prove payment.
    TEd. Note.—Eor other cases, see Payment, Cent. Dig. §§.162-202; Dec. Dig. § 64.*]
    2. Appeal and Error (§ 1050*)—Review—Harmless Error—Admission 'of
    Evidence.
    In an action against an .administrator for a sum which defendant’s intestate agreed to pay plaintiff, the admission of defendant’s" testimony that he had never been paid any part of the indebtedness does not require a reversal; such testimony being immaterial.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]
    3. Payment (§ 64*)—-Pleading—Issues and Proof.
    In an action against an administrator for a sum which his intestate is alleged to have agreed to pay, a general denial of each and every other allegation of the complaint following an admission of the due presentation of plaintiff’s claim and its rejection does not shift from defendant the burden of proof as to payment of the claim.
    [Ed. Note-.—For other cases, see Payment, .Cent. Dig. §§ 162-202; Dec. Dig. § 64.*]
    *For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    Appeal from Justice Court.
    Action by Alfred H. Ives against Walter Male, as administrator of Ephraim P. Smith, deceased. From a judgment of a. justice of the peace for plaintiff, defendant appeals. Affirmed.
    Charles H. Seeley, for appellant.
    Jerome S. Seacord, for respondent.
   A. L. KELLOGG, J.

This is an appeal from a judgment rendered against the defendant in favor of the plaintiff by Frank M. Tyson, Esq., as justice of the peace of the town of Unadilla, in this county, on the verdict of a jury, for $10 damages and $10.50 costs.

The action was brought to recover the sum of $25 and interest from June 22, 1909, for moneys alleged to have been had and received by the said Ephraim P. Smith, now deceased, from the plaintiff; and it is claimed that Smith promised and agreed to pay the said sum of money on or before July 1, 1909, and that no part of the same has been paid.

It is contended by the plaintiff that he purchased a cow from Smith and paid! him $50 therefor, and that he took the cow home, kept her for several days, and then returned her to the decedent’s barn; that he went to a lot where decedent, Smith, was working, and told him that he had returned the cow, and asked for the return of the money paid! for her; that Smith paid then and there to him the sum of $25, and agreed to pay the balance at the time above mentioned.

The defendant’s answer admits that the plaintiff presented a claim for $25 to the administrator of the decedent, which was rejected, and denies' each' and every other allegation in the complaint. On the trial the defendant was permitted to amend the answer for the purpose of alleging that the cow in question, when returned, had been injured and damaged by the plaintiff, and that she was not worth at that time to exceed one-half of the purchase price.

The plaintiff was permitted on the trial to answer this question:

“Q. Has any part of that indebtedness ever been paid? A. No part of the twenty-five dollars has even been paid.”

This was received under objection of the defendant that it was improper and incompetent, under section 829 of the Code of Civil Procedure, as calling for a transaction and communication with the deceased.

It is contended, in behalf of the appellant, that it was error which calls for the reversal of the judgment that the plaintiff was permitted to testify in his own behalf as against the administrator of the decedent that no part of the $25 had ever been paid, and cites numerous authorities in support of that proposition.

The appellant also claims that all of the material allegations of the complaint and the alleged cause of action therein set forth are denied, and that there is no evidence of the claim except the verbal evidence of the witnesses; that it was incumbent upon the plaintiff to prove, not only that the defendant’s testator had promised to make the payment of the $25 sued! for, but also that he had never paid the same; and that there was no way plaintiff could make any proof except by his own testimony, and that he was barred by section 829 of the Code from testifying to that fact; also that, where there is a general denial of the allegations of the complaint, every material averment therein must be proved, and that this especially is the rule which must be followed in all actions for moneys had and received.

After a careful examination of the case on appeal and the briefs of counsel, I have reached the conclusion that this judgment should be affirmed. Assuming that the action here was one to recover for moneys had and received, I do not think it was necessary for the plaintiff to prove nonpayment, but that the burden was upon the defendant to allege and prove payment. Conkling v. Weatherwax, 181 N. Y. 258, 73 N. E. 1028, 2 Ann. Cas. 740; Garfield v. Blair, 10 N. Y. Supp. 340; Rosboro v. Peck, 48 Barb. 92; Kingston Nat. Bank v. Van Buren, 88 Hun, 564, 34 N. Y. Supp. 772; Rice v. Kabak, 72 Misc. Rep. 16, 128 N. Y. Supp. 1092.

The judgment should not be reversed because the plaintiff was permitted to answer in response to a question “that he had never been paid any part of this indebtedness,” for the reason that it was not necessary for the plaintiff to' prove that the sum he claimed to be due had not been paid, as this evidence was immaterial. Lerche v. Brasher, 104 N. Y. 157, 10 N. E. 58; Dresser v. Mercantile Trust Co., 124 App. Div. 893, 108 N. Y. Supp. 577; Lynch v. Lyons, 131 App. Div. 120, 115 N. Y. Supp. 227.

The general denial contained in the answer was not sufficient in itself to shift from the defendant the necessity of showing payment by reason of the form of and allegations of the complaint. Acharan v. Samuel Bros., 144 App. Div. 182, 128 N. Y. Supp. 943.

It is the general rule of law of this state, as well as other states, that, in an action on contract for the payment of money, particularly where the original amount and agreed sum is set forth and claimed to be due, without any allegations as to payments thereon, payment is a defense, and defendant has the burden of proof thereof, and the plaintiff is not bound to prove nonpayment to make out a cause of action. Dresser v. Mercantile Trust Co., 124 App. Div. 893, 108 N. Y. Supp. 577; Lynch v. Lyons, 131 App. Div. 120, 115 N. Y. Supp. 227; Dose v. Hirsch Bros., 65 Misc. Rep. 515, 120 N. Y. Supp. 91; Hicks-Alixanian v. Walton, 14 App. Div. 199, 43 N. Y. Supp. 541.

' The question as to the injuries to the cow while in possession of the plaintiff, and his promise to pay some part of the expense of calling a veterinary', as well as all of the questions arising out of the counterclaim set forth in the amended answer, were duly submitted to the jury; and the jury having passed on all of those issues and found for the plaintiff, even though for less sum than be claimed, I am not able to find error of sufficient importance to reverse the judgment entered on their verdict. The defendant is this case offered, and was permitted to produce by the witness Waters, evidence which was practically to the same effect as the testimony of the plaintiff to which objection was made. It is the general rule that, on appeals from Justice’s Court, the judgment will not be reversed except for absolute error and miscarriage of justice. All presumptions and questions in doubt are to be taken in favor of the respondent.

For the reasons stated, this judgment should be affirmed, with costs.

Judgment affirmed, with costs.  