Lent v. N. Y. & Massachusetts Railway Co.

*479Let us take the case of a defendant’s express absolute promise to pay money.

No doubt a formal allegation of non-payment is usual. No doubt the question, “ has any part of it ever been paid,” is a usual part of the plaintiff’s examination as a witness. No doubt that if the promise be in writing—as for instance a promissory note—the production of it from plaintiff’s possession uncancelled, will fulfill the requirement for evidence of non-payment. See Gray v. Gray, 47 N. Y. 552; rev’g 2 Laws, 173, and Clift v. Moses, 112 N. Y. 426.

The question whether plaintiff must prove non-payment may "well…