Hughes v. Wachter

(On rehearing). The plaintiff asked for a rehearing to determine the questions of burden of proof as to payment and the status of the books of the corporation, and a re-hearing was granted.

It is claimed that non-payment need not be alleged, because payment is an affirmative defense.

The general rule is that non-payment must be alleged in the complaint where failure to pay is an essential element of the cause of action “as for example; in an action on a contract, the breach of which consists of non-payment.” 48 C. J. 665. See also Lent v. New York & M. R. Co. 130 N. Y. 504, 29 N. E. 988, 989;…