
    Erastus Crawford, Resp’t, v. Thomas M. Tyng, App’lt.
    
      (New Fork Common Pleas, General Term,
    
    
      Filed November 5, 1894.)
    
    1. Pleadings—Denial.
    An allegation of non-payment, in an action for money loaned, is not put in issue by a denial in the answer.
    2. Trial—Dismissal op complaint.
    In such case, it is not error for the court to deny a motion to dismiss the complaint on the ground that plaintiff failed to prove non-payment of the loan/
    3. Payment—Third person.
    A payment, made by a third person at defendant’s request, inures to his benefit.
    
      T. M. Tyng, app’lt in person ; Jacob Fromme, for resp’fc
   J. E. Daly, C. J.

This is an appeal from an affirmance by the city court, general term, of a judgment in favor of plaintiff for $1,000, with interest from October 5th, 1888, and costs. The complaint was for money loaned and advanced in divers sums amounting to $1,000 on and previous to July 3rd, 1888, which it was alleged defendant on that day promised in writing, to repay on the 5th day of October, 1888, and which defendant failed to pay. The answer admitted the advance of sums of money, amounting to $1,000, to be repaid on October 5th, 1888, and averred that since that date it had been repaid by professional services, rendered plaintiff at his request by defendant, which were worth $3,000 upon which $1,250 had been paid ; and defendant counterclaimed $1,750'. The answer also contained a denial of each and every averment in the complaint except such as were specifically admitted.

As there was no specific admission of the allegation of nonpayment, the defendant claims that that fact was put in issue by the denial and that plaintiff was bound to prove it; and cites in support of this contention Knapp v. Roche, 94 N. Y. 329, and Lent v. N. Y. & M. R. Co., 130 id. 504; 42 St. Rep. 592. In the first case cited the allegation of non-payment was in reference to the contract of a third party, whose default was alleged as the ground of defendant’s liability ; and so it was held that under a general denial non-payment must be proved. In the second case cited the non-payment was alleged of defendant’s own contract to pay; and while such allegation was held to be essential to the statement of a cause of action, the well settled rule that payment is an affirmative defense was considered, and it was suggested that, while the averment of non-payment was an issuable fact, a general denial does not put that fact in issue, and to that extent the rules that payment must be pleaded must be deemed to modify the rule of pleading under the Code in reference to a general denial.”

As the allegation of non-payment was therefore not put in issue by defendant’s denial, it was not error for the court to deny the motion to dismiss the complaint on the ground that the plaintiff was bound to prove non-payment of the loan. But the denial in the answer put in issue the fact of a written promise as averred in the complaint; for the admission of an advance of sums of money to be repaid on the 5th of October, 1888, was not a specific admission of a promise in writing made on the 8d day of July, 1888, to that effect, and the plaintiff should have been required to make proof of his written instrument. The denial of the motion to dismiss the complaint, when the plaintiff rested without such proof was therefore error.

The injurious effect of the ruling, to the defendant, is unquestionable, for when the only written promise shown to have been executed by him to plaintiff was produced by himself, and payment of the identical sum therein mentioned, with interest, to plaintiff, was established, the latter claimed to recover for a different loan, not evidenced by any writing whatever, and in fact not proved upon the trial.

It is disputed by plaintiff that the payment relied upon by defendant inured to his benefit, because it was made by a third party not in privity with him. But the written acknowledgment by plaintiff of such payment recites that it was made by defendant's request and a payment so made inures to his benefit. Madison Square Bank v. Pierce, 137 N. Y. 444-8; 51 St. Rep. 175. The instrument executed by defendant reciting his indebtedness and promising to pay the loan was an assignment to plaintiff, as collateral security, of a mortgage made by one Green to defendant, and this mortgage plaintiff afterwards assigned to one McGrath in consideration of the sum of $1,163.17 paid to him; the assignment stating that it was made at the request of the mortgagee, defendant, and the mortgager Green. It appears, therefore, that the debt which was evidenced by the writing had been repaid.

As the payment in question and the assignment of the mortgage were made after the issue was joined in the action the defense of payment by that transaction was not set up in the answer; but the evidence was received without objection.

The judgment should be reversed and a new trial ordered', with costs of the appeals and the former trial to appellant, to abide the event. All concur.  