Smith v. State Bank
Appellate Terms of the Supreme Court of New York
Appeal by the defendant from a judgment in .favor of the plaintiff, entered in the City Court of the city of New York, upon the verdict of a jury.
1Opinion of the CourtBischoff, J.
The cause of action was founded upon a breach of the defendant’s contract to pay upon demand, and without an averment of demand and nonpayment the complaint would have been clearly insufficient in substance. Under these circumstances nonpayment was a constituent of the right of recovery and the plaintiff had the burden of proof (Cochran v. Reich, 91 Hun, 440; Lent v. New York & Mass. R. Co., 130 N. Y. 504; Trenkmann v. Schneider, 23 Misc. Rep. 336), the affirmative allegation of payment in such a case serving only as notice that the issue of nonpayment was actually to be raised. Lent v. New…
2Cases cited3 opinions
- Lent v. New York & Massachusetts Railway Co.New York Court of Appeals · 1892
- Cochran v. ReichNew York Supreme Court · 1895
- Trenkmann v. SchneiderAppellate Terms of the Supreme Court of New York · 1898
3Cited by1 opinion
- Newburger v. State BankCity of New York Municipal Court · 1910