131 N.Y.S. 487 | N.Y. App. Div. | 1911
This is an action on contract to recover a sum of money only, which it is alleged in the complaint was due and owing, but non-payment of the indebtedness was not shown by competent evidence. The memorandum written by the learned justice presiding at Special Term when the order was made vacating the warrant of attachment shows that the order was granted on the ground that it was essential for the plaintiff, not only to allege non-payment, but to present proof thereof.
. The authorities uniformly hold that it is necessary for the plaintiff in such an action to allege non-payment, but this is a mere rule of pleading, and for the reason that payment must be pleaded or proved as a defense the denial of such an allegation does not make it an issuable fact and forms an exception to the rule that a denial of a material allegation puts the same in issue. (Lerche v. Brasher, 104 N. Y. 157, 161; Lent v. N. Y. & M. R. Co., 130 id. 504; Essex County Nat. Bank v. Johnson, 16 N. Y. Supp. 71.) The rule seems to be established by a concurrence of the views of the majority of the court in Conkling v. Weatherwax (181 N. Y. 258), that in an action to recover a specific sum of money due oh contract, as distinguished from an action to recover a balance due where the complaint declares generally on an indebtedness, it is sufficient for the plaintiff to allege non-payment without tendering proof thereof and that payment is not to be presumed but is a matter of defense.
The case at bar, I think, falls within this rule, for it is an action on an account stated. The confusion has. arisen over the fact that the basis of the account stated was a balance owing on an existing account. The action is on an assigned claim of the Property Insurance Company, Limited, to recover the sum of $1,214.31, the balance due and owing on an account stated,
■ The plaintiff sufficiently shows that he is entitled to recover the amount ovér and above all counterclaims known to him and this apswers the requirements of section 636 of the Code of Civil Procedure without showing that he was entitled to recover said sum over and above all counterclaims known to, his assignor. (Selser Brothers v. Potter Produce Co., 80 Hun, 554; affd., 144 N. Y. 646; Crowns v. Vail, 51 Hun, 204.)
The respondent also contends that the warrant of attachment was properly vacated on the ground that the plaintiff did not show that his assignor was authorized to do business, in the State of New York, as required by section 9 of the Insurance Law, and on the further ground that the defendant was prohibited by section 50 of the Insurance Law from acting as its agent.' (See Gen. Laws, chap. 38 [Laws of 1892, chap. 690], §§ 9, 50, as amd. by Laws of 1893, chap. 725; now Consol. Laws, chap. 28 [Laws of 1909, chap. 33], §§ 9, 50, as amd. by Laws of 1910, chap. 634, and Laws of 1909, chap. 301.) If the business was conducted in violation of law, that may be a defense to the action; but if so, it should' be pleaded and. proved as a defense,' for it is no part of the plaintiff’s case and is not necessarily presented thereby. It does not appear from the complaint that .the action is based on a contract prohibited .by the laws of this State. , The action is not on an insurance contract made, here, but on an account stated without its appearing where it was stated under a contract evidenced by a letter of appointment of the defendant, written by the manager of the plaintiff’s assignor, dated' at
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, the motion denied, with ten dollars costs, and the attachment reinstated.
Ingraham, P. J., McLaughlin, Clarke and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and attachment reinstated.
