120 N.Y.S. 91 | N.Y. App. Term. | 1909
The plaintiff sues as administrator for the recovery of moneys alleged to have been lent by his intestate to the defendants. The complaint alleges the making of the loans and their non-payment. The answer contains a general denial and also sets up the defense of payment.
The plaintiff was unable to prove non-payment at the trial ■ and at the conclusion of his case the defendants moved for a nonsuit, upon the ground that no cause of action had been made out, and the motion was granted. This was upon the theory that the burden was upon the plaintiff to prove non-payment, and this was error. In an action upon a con
The respondents urge that the nonsuit was proper, because there is no evidence in the record of the plaintiff’s appointment as administrator. The point was not made at the trial and would doubtless have been remedied if it had. After procuring the dismissal of the complaint upon the single ground of the failure to establish nonpayment of the debt, the respondents cannot, even for the purpose of sustaining the judgment, rely upon other defects in the record, at any rate not without showing that they were inherent in the plaintiff’s case and could not have been obviated if the point had been made. Isham v. Davidson, 52 N. Y. 237; Pratt v. Dwelling H. M. F. Ins. Co., 130 id. 206, 220.
Goff and Lehman, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.