127 N.Y.S. 956 | City of New York Municipal Court | 1910
Mo evidence being introduced by the defendant, the motions for a direction made by each of the litigants will depend upon the value of the testimony adduced by the plaintiff. That testimony indicates that the plaintiff, who was a depositor of the defendant, was entitled to a credit of $550, and that the defendant had not repaid the same. Resting on that evidence, the defendant demanded a direction in its favor. Likewise assured by the testimony, the plaintiff asserted a right to a direction in her favor. The determination of these conflicting claims requires consideration of the question whether it is incumbent upon the plaintiff not only to allege but to prove a demand for repayment. The case of Smith v. State Bank, 61 Misc. Rep. 647, asserts the necessity of such an allegation and proof. The doctrine is therein enunciated that in an action founded upon the breach of a contract to pay upon demand the plaintiff must affirmatively allege and prove non-payment. In support of that principle the court cites with approval the case of Cochran v. Reich, 91 Hun, 440, wherein
Defendant’s motion granted.