223 A.D. 623 | N.Y. App. Div. | 1928
This is an appeal by the plaintiff from an order denying plaintiff’s motion for summary judgment under rule 113 of the Rules of Civil Practice.
The action was brought by the Lion Brewery of New York city to recover the sum of approximately $5,000, being an amount unpaid upon a chattel mortgage given upon the fixtures, lease and license of a liquor saloon. The plaintiff waived its right to the chattels and, instead of bringing an action in equity to foreclose, brought an action at law to recover the amount loaned.
The order appealed from will have to be reversed and the motion granted.
The defendant in his answer denies paragraphs 4 and 5 of the plaintiff’s complaint, paragraph 4 being that there has been paid on account of the principal sum $2,144.87, leaving a balance due and unpaid of the amount sued for. Paragraph 5 is that no part of said sum has been paid although demand therefor has been duly
In the case at bar the written instrument provides for a loan, payable on demand, whereas the oral agreement pleaded by the defendant imposed an additional condition that the premises could continue to be used as a liquor saloon. Hence the oral agreement if in fact made contradicted the writing. In addition, the chattel mortgage is under seal and evidence of an oral agreement to modify a,n instrument under seal cannot be given. (Lion Brewery v. Fricke, supra; Cammack v. Slattery & Bro., Inc., 241 N. Y. 39.) For these reasons proof of the separate and distinct defense is not available. The denials in the answer likewise raise no issue. The denial that there has been paid on account the sum of $2,144.87, leaving the balance claimed by the plaintiff, is not effective, since payment is an affirmative defense with the burden on the defendant to allege and prove the same. (Walsh v. Gray, 214 App. Div. 296.) The
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for summary judgment granted, with ten dollars costs.
Dowling, P. J., Merrell, Martin and O’Malley, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.