
    Joseph L. Schackter, Appellant, v. Isaac Kukowsky and Moses Kukowsky, Respondents.
    Second Department,
    March 8, 1907.
    Evidence — when evidence of payment inadmissible — checks not connected with transaction incompetent to show payment.
    Payment is an affirmative defense and must be pleaded. Even if pleaded, payment cannot be established by putting in evidence the defendants’ checks given prior to the transaction in controversy and unconnected therewith by any evidence, and a judgment based upon such erroneous evidence will be reversed.
    Appeal by the plaintiff, Joseph L. Schackter from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendants, dismissing the-complaint upon the merits.-
    
      Andrew Byriie [Philip F. Reville with him on the brief], for the appellant.
    
      Morrison ds Sehiff, for the respondents.
   HIRSCHBERG, P. J.:

The action was brought to recover a balance of $229,10 alleged ■ to be due for goods sold by the plaintiff to thé defendants at the city of Méw York and delivered in Florida, or to carriers át Mew York, designated by the defendants. - It seems to have been practically undisputed that the plaintiff sold the defendants goods to the amount of $979.10 on two days in the month of August, 1904, and that they were paid for by checks to the amount of $750, leaving the balance claimed. These checks were all put in evidence by the defendants and are all dated. after ■ the receipt of the goods. The defendants, however, were permitted to put in evidence, against the plaintiff’s objection-, a check for $110 which was dated prior to the sale of the goods in question, which check the plaintiff testified was given in payment of a bill of goods sold to the defendants in June, 1904. The defendants were also permitted to put in evidence a check for $277.50, dated prior to the receipt of the goods in question, which was received in evidence subject to a similar objection. The plaintiff testified that this check was given in payment of a bill of goods of that amount sold to the defendants in July, 1904, and not for any of -the goods in question, while the defendants admitted the receipt and acceptance by them of a bill for such goods, dated July 15,1904, for the exact amount of the check.

The judgment appealed from dismisses the complaint on the merits, and if it was rendered on the theory of payment, the receipt of the two checks in evidence, that is, the one for $277.50 and the one for $110, clearly constitutes reversible error. The return does not show that the defendants made any answer to the complaint. Payment is an affirmative-defense and must be pleaded. ' Even had payment been pleaded by the defendants, the evidence referred to, would not suffice to establish the defense unless the checks were connected in some way with the sales which were the subject of the controversy. An otherwise concededly good cause of action could not be judicially destroyed in the absence of both defense and proof. The proof, as it appears in the present record, preponderates in favor of the theory that the two checks referred to were not connected in any way with the transaction Avhich forms the" subject of the action.

The judgment should be reversed.

Woodavard, Gaynor, Eich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs .to abide the event.  