Dunmore Worsted Co. v. Blumenfeld

At the close of the plaintiff’s case the complaint was dismissed upon the ground that:

“It is a part of the plaintiff’s case to show that the money is due and owing, and to show that action was commenced at a time after it became due and owing, as that is placed in direct issue by the defendant in his pleadings.”

In this action the justice of the court below was in error. The complaint alleged a sale and delivery of goods to the defendant at an agreed price and reasonable value of $28.13, and it also alleged that no part of said sum had been paid, and that there was still owing the plaintiff said sum. The answer denied only so much of the complaint “as alleges that there is still due and owing to the plaintiff, by reason thereof, the sum of $28.13.” Plaintiff upon the trial proved that no part of the amount claimed had been paid. The denial of defendant raised no issue, it being merely a denial of a conclusion of law. Post Publishing Co. v. Bennett, 164 App. Div. 633-635, 149 N. Y. Supp. 867. The defendant as a separate defense pleaded an unexpired term of credit, but that did not make it incumbent upon the plaintiff to anticipate that defense by proof.

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