Note on Burden of Proof as to Non-Payment. 4 cases, while at the same time it could exclude many unfounded claims against estates by requiring claimants to prove what frequently they cannot give any evidence of. It is true the statute providing for the presentation of sworn claims requires the affidavit to show that no payments, etc., have been made. But it has been held, I understand, that on a reference of such a claim, when disputed, the claimant does not fail by reason of inability to testify to non-payment. I think the present usual practice may be fairly stated in saying that plaintiff always makes in pleading a formal allegation of non-payment (which, however, is not issuable); that he comes to trial provided, if practicable, with some kind of evidence or apology for evidence of nonpayment, even if only a witness to swear that he does not know of any 5 payment; that if regular and competent evidence of non-payment is not produced, nevertheless evidence of an absolute, unconditional promise to pay, with nothing whatever to rebut the familiar presumption that a state of things shown once to exist is presumed to continue, is-considering that to require proof of non-payment is requiring proof of a negative-deemed sufficient to cast on defendant the burden of proof as to payment. It is noteworthy that the 2d division of the Court of Appeals held in Anderson v. Culver, 127 N. Y., 377, that no direct evidence of non-payment was necessary in foreclosure, even where defendant produced the bond from his own possession under a plea of payment. 6 7 I conclude that the true solution of the question lies in this distinction, that the presumption of continuance of a fact is a rule of evidence (Fare . Payne, 40 Vt., 615) but not a rule of pleading (Parkhurst v. Wolf, 47 N. Y. Super. Ct. [J. & S.], 320; People v. Fadner, 10 Abb. N. C., 462); in other words that argumentative pleading is bad, but argumentative evidence is good. Therefore a formal allegation of non-payment, though it may be necessary, may be sufficiently proved by the presumption that an indebtedness shown to have existed continued; and is more clearly proved if the obligation is a written one, by producing it uncancelled. This presumption having been raised, cannot be rebutted by evidence of payment, nor of release, nor of any other new matter, unless such payment or other new matter has been pleaded. The view which I believe has generally been held by the profession since McKyring v. Bull, is, that if defendant is sued on his own unqualified promise to pay, express or implied, and overdue, an allegation of non-payment is not technically essential. Andrews v. Moller, 37 Hun, 480. (Compare Turner v. Kouwenhoven, 100 N. Y., 115.) The burden is on defendant to prove payment. Eagan v. Kergill, 1 Dem., 464; Foote v. Valentine, 48 Hun, 475. But if defendant is sued on a promise to pay in case another person does not, non-payment by that other must be alleged (Knapp v. Roche, 94 N. Y., 329); and in such case the allegation is put in issue by the general denial (ib., and Newton v. Gould, 14 State Rep., 397). The case of Knapp v. Roche has been regarded as dispensing with defendant's allegation of payment only in that class of cases where non Crane v. Powell, 139 N. Y., 379. payment by a third person is a condition precedent, and the payment 8 relied on is one made by such third person. Wemple v. McManus, 39 State Rep., 141; s. c. 15 N. Y. Supp., 8. In that class of cases it is clear that plaintiff must allege such non-payment. In other cases, where the breach is defendant's own promise to pay, the burden of proof as to payment cannot be upon both parties; no direct evidence of non-payment is required, and if a formal allegation of non-payment be essential, the omission of it ought to be regarded as a formal error amendable at the trial. [From Note in 28 Abb. N. C., 478.] CRANE & POWELL. New York Court of Appeals, 1893. [Reported in 139 N. Y., 379; s. c. 30 Abb. N. C., 419.] 1. Where a complaint on contract does not show the contract sued on to be invalid under the Statute of Frauds, the statute is waived by defendant unless specially pleaded as a defence, and cannot be taken advantage of under a general denial. 2. It seems that the Statute of Frauds merely introduces a new rule of evidence, and does not make a contract not complying with it illegal ; and therefore, although plaintiff prove only an oral contract, defendant cannot for the first time interpose the statute by a motion to dismiss the complaint at the close of plaintiff's evidence. Action to recover damages for breach of contract for board 1 and lodging. The facts fully appear in the opinion. At Trial Term judgment was entered for plaintiff on a verdict. The General Term of the Court of Common Pleas affirmed the judgment. The Court of Appeals affirmed the judgment. O'BRIEN, J. The plaintiff recovered damages for the breach of an agreement, which, on the trial, appeared to be oral. The complaint alleges that the plaintiff, in the month of October, 1887, was in the possession, under a lease, of a house in the city of New York, and that she entered into an agreement with the defendant whereby the defendant leased from her for the term of one year from the first day of November, 1887, the two front Crane v. Powell, 139 N. Y., 379. 3 rooms on the second floor, and the back parlor and extension room, with the use of the front parlor on the first floor, with board and attendance to be furnished during the time by the plaintiff for the defendant and his assistant or associate in business, for the sum of $3,250, payable in equal monthly payments of $270.83 in advance. The defendant was a practicing physician, and the rooms were intended, in part, at least, to serve the purpose of an office, in which the defendant was to carry on his business. The defendant, in pursuance of this agreement, entered into and took possession of the rooms, and used them for the purpose intended, and he and his associate were furnished with board and attendance until the month of June, 1888, when, without the consent of the plaintiff, he abandoned the premises, and refused to further perform the agreement on his part, though the plaintiff was at all times ready and willing to perform on her part. It was also stipulated, as a part of said agreement, that the defendant, for the purpose of his business, should have the privilege of affixing in a suitable place on the front of the house, his business sign, and that in pursuance of 5 that right, conferred by the agreement, he did affix, upon taking possession on the first of November, at the side of the front door, a metallic sign with his name and professional business upon it, and also words and figures indicating when he could be found by patients and callers at his rooms in the house. The judgment appealed from was recovered by the plaintiff as damages for a breach of this agreement. It appears that he paid the stipulated monthly payments only up to June 1, 1888, and the plaintiff claims that on or about July 1 thereafter, in consequence of the defendant's refusal to further perform his agreement, her home and business was broken up and she was obliged to surrender her lease, which then had about two years to run, to her landlord. The jury allowed the plaintiff for the month of June the whole of the monthly payment, but the General Term modified the damages for that month by deducting what it would actually cost the plaintiff to furnish board for two persons during that time, and for the four remaining months of the time the plaintiff recovered only the profits which she would have made had the defendant performed. The defendant's answer admits that during 6 Crane v. Powell, 139 N. Y., 379. The the time he was engaged in business as a physician, and that the '7 plaintiff, at the time of the alleged agreement, was the lessee of and in possession of the house, and all the other allegations of the complaint were denied, but no other defence was pleaded. At the trial it appeared that the contract sued upon was not in writing, but the defendant made no objection to oral proof to establish it, and the plaintiff was permitted, without objection, to testify to a verbal agreement to sustain the allegations of the complaint. When the plaintiff rested, however, and again at the close of the case, the defendant moved to dismiss the complaint, on the ground, among others, that as the agreement was not in writing, and as it was not to be performed within one year from the making thereof, it was void by the Statute of Frauds. Court refused to rule in accordance with this request, and the defendant excepted. The defendant, in his own behalf, testified • that there was no time specified for the duration of the agreement, and there was a sharp conflict in the evidence between him and the plaintiff, who claimed that it was to last for one year. The plaintiff's version of the transaction was sustained in some degree by circumstances and by proof of admissions claimed 9 to have been made by the defendant. That question was submitted to the jury by the learned trial judge, with proper instructions, and the verdict must be taken as a conclusive. determination of the issue. But the learned judge distinctly ruled and charged the jury that the defendant was in no position to urge the invalidity of the contract under the Statute of Frauds, by reason of his omission to plead that defence, and to the ruling and the charge to the same effect there was an exception. The result in the courts below thus turned upon the omission of the defendant to plead the statute, and the first and perhaps only question presented by the appeal is one of pleading. Preliminary to that question it should be observed that contracts that by their terms are not to be performed within one year were valid at common law, though not in writing, but the statute enacted that thereafter such agreements should be void unless reduced to writing, and, therefore, a new defence was created with respect to such agreements as were within the statute. The Statute of Frauds does not prohibit the making of any 10 Crane v. Powell, 139 N. Y., 379. 11 agreement in any way that the parties may see fit nor render them illegal or immoral if not made in some particular way. It simply requires that certain agreements must be proved by a writing. It introduced a new rule of evidence in certain cases without condemning as illegal any contract that was legal before. [A ruling on the question of a waiver by defendant by failing to object to oral proof of the agreement, is omitted.] 12 But the important question in the case, and upon which we prefer to let the decision rest, is whether, in the light of the adjudged cases, it is not necessary for a defendant who intends to avail himself of the benefit of the statute, as a defence to an action for damages for breach of a verbal agreement, within the statute, to specifically plead it. It is safe enough to premise that the authorities are not all in harmony on this question any more than they are upon many other questions with respect to the construction and application of the statute itself. In England, under the rules framed in pursuance of the Judicature Act, and in some of our sister States, it is necessary to plead the statute. (Am. & Eng. Ency. 13 of Law, p. 747, vol. 8, note 2; Graffam v. Pierce, 143 Mass., 386 ; 14 Lawrence. Chase, 54 Me., 196; Farwell v. Tillson, 76 id., 227; Bird ». Munroe, 66 id., 346; Boston Duck Co. v. Dewey, 6 Gray, 446.) In this State cases may be found where the opinion is expressed that the defendant may avail himself at the trial of the benefit of the statute, under the general issue, by objection to verbal proof of the contract. Some of these cases and, perhaps, the principal ones, have already been cited to show when and how the defendant is deemed to have waived the benefit of the statute by admitting the allegations of the complaint. It is proper, I think, to observe that they are cases where the complaint was admitted in some way or the decision was before the Code or founded upon authority antecedent to it. The recent cases in this court sustain the view that it is necessary to plead the statute. In Porter v. Wormser (94 N. Y., 450), Judge ANDREWS said: "The general rule is that the defence of the Statute of Frauds must be pleaded. *** It cannot be doubted that if the defendants had brought an action to recover a balance |