Knapp v. Roche, 94 N. Y., 329. with said Reeves E. Selmes or one of them, and that thereupon 6 they and the defendant became, and each of them was remised, released and forever discharged from every claim and demand which the plaintiff as receiver had against them, or the defendant by reason of the matters or either of them set forth in the complaint. At the trial the judge refused to receive evidence of payment. The General Term affirmed the judgment. The Court of Appeals now reversed it. RUGER, Ch. J. This action is brought by the receiver of an insolvent money corporation against its vice president to recover damages for losses occasioned by alleged illegal loans made by him of the funds of the corporation. Such corporation was a savings bank, organized under a special act of the Legislature (Chap. 831, Laws of 1868), by which it was authorized to invest its funds only in certain specified securities. 7 It was claimed that the defendant loaned the moneys of the 8 bank to Avenue C railroad, and to one D. K. Colburn, upon securities not authorized by the act of incorporation. The only damage occurring to such bank in consequence of the acts of the defendant, as stated in the complaint, was that such loans remained due and unpaid at the time of the commencement of the action. To this part of the complaint the defendant interposed a general denial. The defendant also, by a supplemental answer, pleaded as a defence to the action that Henry Smith, president, 9 and Reeves E. Selmes, secretary of said bank, were jointly liable with defendant for the causes of action alleged in the complaint, and that for a good consideration paid by the said Smith and Selmes to the plaintiff they had been released and discharged from liability on account of said several causes of action, and claimed that thereby the said defendant became also discharged therefrom. In support of the action on the trial the plaintiff gave evidence tending to show that Henry Smith, the president; Reeves E. Knapp v. Roche, 94 N. Y., 329. 10 Selmes, secretary; and the defendant, as vice-president of the Bowling Green Savings Bank, co-operated in making the alleged illegal loans, and that portions of such loans remained unpaid when the case was tried. 11 12 13 The defendant, in answer to the case made by the plaintiff, offered to prove the payment by Henry Smith to the plaintiff of the sum of $45,000 on account of the alleged overdrafts which the evidence showed were the basis of the plaintiff's claim against the defendant. This evidence was upon objection excluded by the court, and the defendant excepted to such exclusion. In rejecting this evidence we think the court erred. The allegations in the complaint that the several unauthorized loans made by the defendant remained unpaid at the commencement of the action were necessary and material in order to constitute a good cause of action against the defendant. In the absence of these allegations there would have been shown by the complaint no cause of action, inasmuch as it showed no damage resulting to the plaintiff from the injuries complained of It is essential to the maintenance of an action for a tort that damages should accompany the act complained of, otherwise it is damnum absque injuria, for which no action lies. (Commercial Bk. v. Ten Eyck, 48 N. Y., 305; People v. Stephens, 71 id., 541.) The mere allegation that the officers of a bank have made. illegal loans of the moneys of such bank, or committed other tortious acts, would not show a cause of action in favor of the bank against the officers. It was, therefore, an essential part of the plaintiff's case to allege the non-payment of the loans in question, from which the damage to the plaintiff might be inferred. This may not have been very correct pleading on the part of the plaintiff, but it constitutes the only theory upon which the complaint can be held to have stated a cause of action. A general denial of the allegations of the complaint, therefore, put in issue the fact of non-payment, and rendered evidence controverting that fact admissible under the answer. While it is generally true that a defence of payment is inad Knapp v. Roche, 94 N. Y., 329. missible under a general denial, this is not so when the fact of 14 non-payment is alleged in the complaint as a necessary and material fact to constitute a cause of action. (Van Giesen v. Van Giesen, 10 N. Y., 316; McKyring v. Bull, 16 id., 297, p. 450 of this vol.; Quinn v. Lloyd, 41 id., 349, p. 461 of this vol.) It is always competent to prove under a general denial any facts tending to controvert the material affirmative allegations of a complaint. (Quinn v. Lloyd, supra; Beaty v. Swarthout, 32 Barb., 293; Howell v. Biddlecom, 62 id., 131.) 15 Under the general denial in this case it was competent for defendant to prove any facts tending to show that the plaintiff had not suffered damages to the extent claimed by him. For this purpose he could prove that the moneys illegally taken from the bank had been refunded, either by the alleged borrower or anyone jointly liable with himself for the injury complained of. (Hun . Van Dyck, 26 Hun, 567; affirmed, 92 N. Y., 660.) While a plea of payment by a stranger, between whom and the defendant there is no privity, has sometimes been held to be unavailable as a defence (Bleakley v. White, 4 Paige, 654; Atlantic Dock Co. v. Mayor of N. Y., 53 N. Y., 67), yet satisfaction 16 by one joint tortfeasor has always been held to be available as a bar to an action against another. (Livingston v. Bishop, 1 Johns, 291; Thomas v. Rumsey, 6 id., 31; Barrett v. Third Avenue R. R. Co., 45 N. Y., 635; Woods v. Pangburn, 75 id., 498.) This rule applies with equal reason to a partial satisfaction by one of the wrong-doers for the damages occasioned by the joint wrongful act of both. Such evidence is proper in mitigation of damages, and under the former practice was admissible under the general issue. (Daniels v. Hallenbeck, 19 Wend., 409; Bush. Prosser, 11 N. Y., 347; Wilmarth v. Babcock, 2 Hill, 194.) Without considering the other questions raised on this appeal, we think that, for the reasons stated, the judgment should be reversed and a new trial ordered with costs to abide the event. All the judges concurred. Judgment reversed. 17 Lent v. New York, Massachusetts Railway Co., 130 N. Y., 504. WHITMAN v. FOLEY. New York Court of Appeals, 1891. [Reported in 125 N. Y., 651.] In foreclosure, an answer alleging that the sums mentioned in the complaint were not due and unpaid; that sums had been paid thereon, but the times and amounts defendant was unable to state,-Held sufficient at the trial. 1 The plaintiff brought this action for a foreclosure of two mortgages, alleging a certain indebtedness to be due upon the bonds for principal and interest. These appellants answered, alleging that the sums mentioned in the complaint were not due nor unpaid, and that sums were paid thereon, "the times of. payment and the amounts these defendants are not now able to state." GRAY, J. [delivering the opinion of the Court, said upon this point] The form of their pleading is open to the respondent's criticism, and it is both inartistic and loose; but it cannot be 2 taken as containing any admission of the plaintiff's allegations as to the amount due from the defendants, and whatever the objections to its sufficiency, they must be deemed to have been waived by proceeding to a trial upon the merits. The failure to raise any such question by a proper motion or exception precludes its discussion in the Appellate Court. (Cowing v. Altman, 79 N. Y., 167.) The issue was presented as to the amount for which the mortgage deeds were still a lien upon the lands described in the complaint, and that was, the issue which was referred to the referee to hear and determine. LENT v. NEW YORK, MASSACHUSETTS RAILWAY COMPANY. New York Court of Appeals, Second Division, January, 1892. [Reported in 130 N. Y., 504.] 1. In an action against a railroad company to recover the amount of an award against it for land taken under L. 1850, c. 14, § 18, as amended by L. 1876, c. 198, the complaint is demurrable if it does not allege Lent v. New York, Massachusetts Railway Co., 130 N. Y., 504. record of the award or of a certified copy, and also non-payment of it. 2. It seems that in every action upon an ordinary contract for the payment of money, non-payment is a fact which constitutes the breach of the contract and is the essence of the action, and must be alleged and proved.* * This case treats a question of much importance. The opinion in 130 N. Y., 510, lays down the above rule, and attributes the rule that payment is an affirmative defense which must be pleaded by defendant in order to allow him to prove it, to the history of pleading, regarding it as exceptional; and concludes that non-payment being the breach of the contract must be alleged by plaintiff, because it must be proved to enable him to recover. The principles laid down in the latter half of the opinion are there applied to all ordinary contracts for the payment of money; and the rule that non-payment must be proved by plaintiff as a part of his cause of action, if it means that he must give any direct evidence on the point, involves some consequences that deserve careful examination. Let 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 nonpayment. See Gray v. Gray, 47 N. Y., 552; rev'g 2 Lans., 173, and Clift v. Moses, 112 N. Y., 426. The question whether plaintiff must prove non-payment may well be tested by taking the case of an action by or against the estate of a decedent. 1 2 Non-payment is usually a fact which can only be proved by a party. An agent who had entire charge of his principal's payments or receipts could give satisfactory evidence that a debt due to or from his principal had not been paid in the ordinary course of business. But even if the 3 testimony of such an exclusive agent be sufficient, yet non-payment could not be proved by an ordinary agent. Usually when an executor or administrator sues on an oral or implied contract to pay the decedent, the only evidence he can give of non-payment is that he does not know and cannot learn of any payment. If this. is competent and sufficient it is a departure from ordinary rules of evidence. See Carroll v. Deirnel, 95 N. Y., 252; Uline v. N. Y. Central R. Co., 14 Weekly Dig., 575. When an executor or administrator is sued, the plaintiff is not competent to testify to non-payment. The rule of the case in the text, then, applied in this large class of cases would, under present rules of evidence, work great hardship in many |