American Slicing Mach. Co. v. Kuchukian

PER CURIAM.

This is an appeal by the plaintiff from a judgment rendered.in favor of the defendant for costs upon a motioti made by the defendant at the close of the plaintiff’s case upon the ground Sat the plaintiff failed to prove nonpayment of the indebtedness sued for. The complaint alleged a sale and delivery by plaintiff to the defendant of a slicing machine, that the agreed price of said machine was $110, and that no part of such price had been paid, -except the sum of $10, and demanded judgment for $100, balance. The answer was in substance a general denial, and an affirmative defense that the sale was induced by fraudulent representations.

Under the pleadings, payment was an affirmative defense, which must be set forth and pleaded, and proof of nonpayment on the part of the plaintiff was not required. Acharan v. Samuel Bros., 144 App. Div. 182, 128 N. Y. Supp. 943. Moreover, a representative of the plaintiff testified that, so far as he knew, nothing had been paid- upon the indebtedness, except the sum of $10, and that he would have known if other payments had been made. This was sufficient to require proof of payment on the part of the defendant, if any was made.

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