MARCIAL ACHARAN and ALFREDO A. PINILLOS, Appellants,
SAMUEL BROTHERS (a Corporation), Respondent.
APPEAL by the plaintiffs, Marcial Acharan and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of January, 1911, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
The plaintiff Acharan and one Jose Goicochea were copartners doing business under the firm name of Acharan, Goicochea & Co. Prior to the commencement of this action Jose Goicochea died, and the plaintiff Acharan and Alfredo A. Pinillos, as the legal representative of said Jose Goicochea, deceased, and as trustee for his heirs and next of kin, have continued the business as aforesaid.
Phanor J. Eder, for the appellants.
Perry Allen, for the respondent.
Plaintiffs appeal from a judgment entered upon a dismissal of the complaint at Trial Term. The action is for a balance claimed to be due upon a running account. The complaint alleges that on June 1, 1906, an account was stated between the parties whereby it was found that the sum of $2,035.32 was due to the defendant. That thereafter business relations continued in the course of which defendant received moneys belonging to plaintiffs and plaintiffs paid out certain moneys on account of defendant and became entitled to certain credits, all of which amounted to $19,148.55, which sum has been recognized and acknowledged by defendant as credits properly allowable to plaintiffs. Then follow these allegations:
'VIII. That of said sum of $19,148.55, no part has been paid except the sum of $16,261.60, made up of divers items, more particularly set forth in the annexed account marked Schedule 'B,' which is made a part of this complaint.
'IX. That the defendant is further entitled to credit to the
amount of $306.29 for interest on balance of account existing from time to time in its favor from said 1st day of June, 1906, and during the continuance of its business relations with the said firm of Acharan, Goicochea & Co.
'X. That after deducting the aforesaid amounts of $2,035.32 mentioned in Paragraph IV; $16,261.60 mentioned in Paragraph VIII, and $306.29 mentioned in Paragraph IX, there remains a balance due and owing by the defendant of $543.34, no part whereof has been paid, although due and duly demanded.'
This Schedule 'B,' referred to in paragraph VIII, consists of a list of items aggregating the sum of $16,261.60. At the trial everything in the answer was withdrawn except paragraph II thereof, which consisted of a general denial of paragraphs VIII and X of the complaint, which have been quoted verbatim above. No evidence was offered by either party at the trial, and both moved for judgment. The court dismissed the complaint, and this appeal presents the sole question whether or not a general denial of allegations such as are contained in paragraphs VIII and X of the complaint puts the plaintiffs to their proof that no more has been paid than they have given defendant credit for. By its admissions the defendant concedes that the total sum of $19,148.55 has from time to time been due to plaintiffs. Its denials do not call that figure in question. The general rule is that payment is an affirmative defense and must be specially pleaded in order to be available, and cannot be proven under a general denial. In cases to which that rule is applicable it is incumbent upon the defendant not only to allege payment, but to assume the burden of proving it. The rule is not, however, of universal application. The whole subject has recently been exhaustively discussed by two judges of the Court of Appeals in Conkling v. Weatherwax (181 N.Y. 258). In that case Judge VANN attempted to formulate certain ...