Smith v. State Bank

Appellate Terms of the Supreme Court of New York

Smith v. State Bank

61 Misc. 647, 114 N.Y.S. 56

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 15, 1909

StatusPublished

Cited by1 cases

This text of 61 Misc. 647 (Smith v. State Bank) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. State Bank, 61 Misc. 647, 114 N.Y.S. 56 (N.Y. Ct. App. 1909).

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Opinion

Bischoff, J.

The cause of action was founded upon a breach of the defendant’s contract to pay upon demand, and without an averment of demand and nonpayment the complaint would have been clearly insufficient in substance. Under these circumstances nonpayment was a constituent of the right of recovery and the plaintiff had the burden of proof (Cochran v. Reich, 91 Hun, 440; Lent v. New York & Mass. R. Co., 130 N. Y. 504; Trenkmann v. Schneider, 23 Misc. Rep. 336), the affirmative allegation of payment in such a case serving only as notice that the issue of nonpayment was actually to be raised. Lent v. New York & Mass. R. Co., supra.

In view of the close question involved in this issue, depending upon the identity of the person to whom payment was made, the court’s instruction that the defendant had the burden of proof, over exception duly taken, was error which requires a reversal of the judgment.

Gildersleeve and Guy, JJ., concur.

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

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Bischoff, J.

The cause of action was founded upon a breach of the defendant’s contract to pay upon demand, and without an averment of demand and nonpayment the complaint would have been clearly insufficient in substance. Under these circumstances nonpayment was a constituent of the right of recovery and the plaintiff had the burden of proof (Cochran v. Reich, 91 Hun, 440; Lent v. New York & Mass. R. Co., 130 N. Y. 504; Trenkmann v. Schneider, 23 Misc. Rep. 336), the affirmative allegation of payment in such a case serving only as notice that the issue of nonpayment was actually to be raised. Lent v. New York & Mass. R. Co., supra.

In view of the close question involved in this issue, depending upon the identity of the person to whom payment was made, the court’s instruction that the defendant had the burden of proof, over exception duly taken, was error which requires a reversal of the judgment.

Gildersleeve and Guy, JJ., concur.

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

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Bluebook (online)

61 Misc. 647, 114 N.Y.S. 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-bank-nyappterm-1909.

Opinion

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